June 17, 2009 – State of New Mexico v. Meagan Rene Gamlen, No. 28,215

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:

Filing Date: _June 17, 2009

NO. 28,215

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

MEAGAN RENE GAMLEN,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Mark A. Macaron, District Judge

Gary K. King, Attomey General
Santa Fe, NM
Jacqueline R. Medina, Assistant Attomey General

Albuquerque, NM
for Appellee

Lisa A. Torraco
Albuquerque, NM

for Appellant

OPINION
WECHSLER, Judge.
{1} 	Defendant Meagan Gamlen appeals the district court’s judgment on record
affirming the metropolitan court order finding Defendant guilty of driving while
intoxicated and failure to maintain her lane. We consider (1) whether Defendant’s
right to counsel of her choice under the Sixth Amendment to the United States
Constitution was violated as a result of a police officer’s inappropriate behavior
during an interview with Defendant’s original chosen counsel and (2) whether the
ordinance requiring a driver to maintain her lane is unconstitutionally vague. 	We
affirm.
BACKGROUND
{2} 	In March 2006, Officer Jude Lujan of the Albuquerque Police Department
observed a truck drift over the “fog line” for approximately sixty to seventy yards and
initiated a traffic stop. Upon making contact with Defendant, Officer Lujan noticed
that Defendant had bloodshot watery eyes, slurred speech, and a strong odor of
alcohol. Defendant admitted to having consumed three beers that evening. Officer
Lujan had Defendant perform field sobriety tests and, as a result of numerous
indications of intoxication from the tests, arrested Defendant for drunk driving.
Officer Lujan charged Defendant with violation of Albuquerque, N.M., Traffic Code

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Section 8-2-1-42 (1974), for failure to maintain a traffic lane; NMSA 1978, Section
66-8-102 (2008), for driving while intoxicated; and NMSA 1978, Section 66-8-138
(2001), for possession of an open alcoholic beverage while in a motor vehicle.
{3} 	Defendant hired Thomas J. Mescall II as her attorney. 	Mescall interviewed
Officer Lujan in September 2006. Before the interview began, Officer Lujan called
Mescall a “son of a bitch,” and during the interview, Officer Lujan used his middle
finger to refer to the report while he was answering questions, a gesture that Mescall
considered obscene. Officer Lujan was also noticeably irritated during the interview,
stated numerous times that he did not want to repeat answers, and left the interview
early to appear in court. About a week after the interview, Lisa Torraco substituted
for Mescall as Defendant’s counsel. Torraco and Mescall testified that Mescall had
determined that it was in Defendant’s best interest that Torraco replace Mescall as
counsel. 	Mescall informed Defendant that she could oppose his withdrawal, but
Defendant chose not to do so.
{4} 	Defendant filed a motion to suppress Officer Lujan’s testimony, arguing that
Officer Lujan’s actions “forced” her attorney of choice to withdraw from the case.
During the hearing on the motion to suppress, Mescall testified that he withdrew upon
his and Defendant’s request to the court. 	Mescall further testified that he did not

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know how Defendant’s trial might have been impacted if Mescall had continued as
Defendant’s counsel and later stated that Officer Lujan might perjure himself or color
his testimony.
{5} 	The metropolitan court ultimately denied Defendant’s motion to suppress and
found that, although Officer Lujan’s behavior could be viewed as offensive or rude,
Defendant failed to provide evidence that required dismissal or suppression. Instead,
the metropolitan court stated that Defendant made a voluntary choice that was
unnecessary and unwarranted. Defendant’s case proceeded to trial. The metropolitan
court found Defendant guilty of driving while intoxicated and failure to maintain a
traffic lane. 	Defendant filed a motion to reconsider, arguing that the ordinance
prohibiting failure to maintain a traffic lane was unconstitutionally vague. 	The
metropolitan court entered a judgment and sentence, again finding Defendant guilty
of driving while intoxicated and failure to maintain a traffic lane. Defendant appealed
to the district court. 	The district court affirmed in a memorandum opinion, and
Defendant appealed to this Court.
SIXTH AMENDMENT: DEPRIVATION OF COUNSEL OF CHOICE
{6} 	The Sixth Amendment to the United States Constitution states: “In all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel

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for his defense.” U.S. Const. amend. VI. “[A]n element of this right is the right of a
defendant who does not require appointed counsel to choose who will represent him.”
United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006).
{7} 	Defendant argues that her Sixth Amendment right was violated because her
chosen counsel, Mescall, withdrew from the case due to Officer Lujan’s conduct.
Specifically, she argues that the metropolitan court erred by not dismissing the case
“with 	prejudice 	because 	a 	[s]tate 	agent’s 	misconduct 	permanently 	deprived
[Defendant] of her chosen counsel.” Defendant relies on United States v. Amlani, 111
F.3d 705, 710-11 (9th Cir. 1997), which held that allegations of prosecutorial
disparagement of counsel in a defendant’s presence establish a Sixth Amendment
claim.
{8} 	In Amlani, the state’s attorney disparaged the defendant’s counsel in front of the
defendant, causing the defendant to lose confidence in his original chosen counsel’s
competency and, therefore, to substitute counsel. 	Id. at 710. 	Amlani held that “a
change in defense counsel caused by the prosecution’s misconduct itself establishes
the requisite prejudice to vacate [the defendant’s] conviction” and that “the allegations
state a Sixth Amendment claim.” 	Id. at 711-12. 	Defendant in the present case
therefore contends that, “like the misconduct in 	Amlani[,] the error took on

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constitutional magnitude because of its result.”
{9} 	We assume without deciding that we would apply reasoning similar to Amlani
and that Officer Lujan is a “state agent” for purposes of this opinion. See, e.g., People
v. Hooper, 403 N.W.2d 605, 608 (Mich. Ct. App. 1987) (recognizing that acts of an
FBI agent or secret service agent are “attributable to the prosecution”). With these
assumptions, if Defendant can establish a violation of her right to counsel of choice,
she would be entitled to a reversal of her conviction without a showing that her new
counsel failed to provide her a quality defense because, unlike a Sixth Amendment
challenge for ineffective assistance of counsel, a violation of the right to counsel of
choice in itself constitutes prejudice. See Gonzalez-Lopez, 548 U.S. at 147-48.
{10} 	To succeed in her arguments, however, Defendant must establish a sufficient
causal link between Officer Lujan’s actions and Defendant’s decision to terminate
Mescall’s services. 	Defendant contends in this regard that “[a]n error causes a
deprivation of counsel whenever that error is the primary reason for the chosen
attorney’s withdrawal.” 	We do not agree. 	Although the decision to withdraw as
counsel is a private one made between an attorney and client, a court cannot be bound
by the subjective decisions of an attorney and client in its scrutiny of a constitutional
claim based upon the right to counsel of one’s choice. Regardless of the “primary

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reason” for the private decision for an attorney’s withdrawal, the court must
nevertheless determine whether the alleged interference constitutes a constitutional
infringement justifying a judicial remedy. This analysis is a factual one that depends
on the facts of each case.
{11} 	We thus look to the facts in this case to determine whether Defendant has
established a Sixth Amendment violation. 	Our review of the metropolitan court’s
application of the Sixth Amendment to the facts is a mixed question of law and fact
that we review de novo. See Duncan v. Kerby, 115 N.M. 344, 347-48, 851 P.2d 466,
469-70 (1993).
{12} 	Mescall testified that Officer Lujan appeared “combative,” called Mescall a
“son of a bitch,” did not respond to all of Mescall’s questions, and used his middle
finger to point to documents. Mescall further testified that he believed, on the basis
of information received through other officers who approached him about Officer
Lujan after the interview, that Officer Lujan was “making sure Mescall could not do
his job representing [Defendant].” However, Mescall also testified that Officer Lujan
neither threatened to commit perjury nor threatened repercussions at all if Mescall did
not withdraw as Defendant’s counsel and that he did not believe that the other officers
indicated that Officer Lujan would commit perjury. 	Mescall testified that the

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prosecutor did not force him to withdraw, that, instead, he did so voluntarily, and that
he did not know how Defendant’s case would be negatively impacted if he continued
to represent Defendant.
{13} 	This evidence does not establish that Defendant suffered a Sixth Amendment
violation. Although Officer Lujan expressed negative behavior toward Mescall, the
evidence does not demonstrate that his behavior had, or would have, a demonstrable
impact on Mescall’s ability to represent Defendant or upon the outcome of the case.
Mescall’s belief that Officer Lujan intended to frustrate Mescall’s defense efforts in
an improper manner was largely speculative, and Officer Lujan’s disrespectful acts
alone do not establish such an intent. Mescall’s testimony about the other officers’
statements was vague.
{14} 	Unfortunately, in our adversary system of criminal justice, both sides do not
always act in the professional manner expected of them. 	The metropolitan court
agreed that Officer Lujan fell short of that standard. To some degree, our court rules
are intended to control this type of behavior. Discovery rules contemplate involving
the court to resolve discovery disputes and arm the court with the ability to compel
cooperation and issue sanctions. See Rule 7-504(H) NMRA. Indeed, upon the proper
request and proof, the metropolitan court could have sanctioned Officer Lujan’s

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behavior. 	Nonetheless, our holding is limited to Defendant’s Sixth Amendment
argument. 	While we do not condone Officer Lujan’s behavior and stress that the
pursuit of justice is best carried out with professional behavior on the part of all
participants in the process, the evidence is insufficient to establish a Sixth Amendment
violation.
{15} 	We note that Defendant additionally relies on Gonzalez-Lopez to argue that the
elements of a Sixth Amendment violation are (1) an error (2) that results in the
deprivation of a defendant’s chosen counsel. 	However, Gonzalez-Lopez does not
affect our analysis. 	In Gonzalez-Lopez, the trial court erroneously denied the
defendant’s application for admission pro hac vice, and, as a result, the defendant was
required to retain local counsel. 548 U.S. at 142-43, 148. The United States Supreme
Court held that the trial court violated the defendant’s Sixth Amendment right to
counsel of choice. 	Id. at 148. 	The issue before the Court in Gonzalez-Lopez was
whether a trial court’s denial constituted a Sixth Amendment violation and whether
that error was subject to a harmless error analysis. 	See id. 	The Court did not
contemplate the actions of the prosecution or any other state actor. 	“It is well
established that cases are not authority for propositions not considered.” See State v.
Erickson K., 2002-NMCA-058, ¶ 20, 132 N.M. 258, 46 P.3d 1258 (internal quotation

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marks and citation omitted).
{16} 	Therefore, to find a violation of her Sixth Amendment right to counsel of choice
under Gonzalez-Lopez, Defendant must establish that a lower court erroneously
denied her counsel of choice and that the erroneous denial outweighed the need for
judicial fairness. 	See 548 U.S. at 148, 152. 	Defendant makes no claim that the
metropolitan court itself denied Defendant her counsel of choice. 	Indeed, the
metropolitan court accepted Mescall’s withdrawal, and Defendant made no objection.
Moreover, as we have discussed, the evidence in this case does not show that there
was any erroneous denial of counsel of choice. As such, we decline to find a Sixth
Amendment violation under Gonzalez-Lopez.
CONSTITUTIONALITY OF ORDINANCE TO MAINTAIN LANE
{17} 	We next address Defendant’s argument that Section 8-2-1-42, requiring a driver
to travel in marked lanes, is unconstitutionally vague. 	Whether the ordinance is
constitutional is a question of law that we review de novo, using the same rules of
construction we apply to statutes. See Prot. & Advocacy Sys. v. City of Albuquerque,
2008-NMCA-149, ¶ 43, 145 N.M. 156, 195 P.3d 1, cert. denied, 2008-NMCERT-009,
145 N.M. 257, 196 P.3d 488. 	An ordinance is void for vagueness if people “of
common intelligence must guess at its meaning and [must] differ as to its application.”

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State v. Fleming, 2006-NMCA-149, ¶ 3, 140 N.M. 797, 149 P.3d 113 (alteration in
original) (internal quotation marks and citation omitted). We assume an ordinance is
constitutional if it is reasonably supported by a plain reading of the language in the
ordinance. See id.
{18} 	Section 8-2-1-42 states, “[n]o operator of a vehicle shall fail to keep such
vehicle within the boundaries of a marked traffic lane, except when lawfully passing
another, making a lawful turning movement or lawfully changing lanes.” Defendant
contends that people “of common intelligence would not all be satisfied by” a plain
reading of the ordinance because such a reading, in isolation, would “prohibit the
operation of a vehicle down any unlaned roadway, in any parking area[,] or in the
driver’s own garage.” We do not agree.
{19} 	A plain reading of the ordinance alerts a person of common intelligence that,
when operating a vehicle within a marked traffic lane, the vehicle must stay within the
boundaries except under specified circumstances. 	See § 8-2-1-42. 	Defendant’s
examples of the “absurd result[s]” that would occur from a plain reading of the
ordinance are not appropriate applications of the ordinance. 	Unlaned roadways,
parking areas, and garages are not “marked traffic lane[s].” See id. Not all driving
surfaces and roadways are bound by marked traffic lanes. 	This Court will not

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speculate regarding which sections of the traffic code apply to unmarked roadways.
Drivers using roadways with marked traffic lanes are required to comply with the
ordinance. 	Because the ordinance’s plain language does not require people “of
common intelligence [to] guess at its meaning,” it is not unconstitutionally vague. See
Fleming, 2006-NMCA-149, ¶ 3 (internal quotation marks and citation omitted).
{20} 	Defendant 	further 	argues 	that 	the 	spirit 	of 	the 	law 	creates 	confusion.
Specifically, Defendant contends that “[t]he requirement of ‘lawfulness’ could
logically be construed to refer to the other sections of the Traffic Regulations Article
of the Traffic Code[, which] are concerned with protecting drivers[,] not the sanctity
of the roadway markings.” 	Moreover, Defendant argues that Albuquerque, N.M.,
Traffic Code Section 8-2-1-51 (1974), which directs drivers to “yield right-of-way and
immediately drive to a position parallel to, and as close as possible to, the right-hand
edge or curb of the roadway” when approached by an authorized emergency vehicle,
creates discrepancy with Section 8-2-1-42 because, “upon seeing Officer Lujan’s
marked patrol car behind her, [Defendant] could not have known that [Section] 8-2-1-
42 prohibited her from pulling closer to the right-hand edge of the roadway unless a
siren sounded.” We are not persuaded.
{21} 	The terms “lawfully” and “lawful” in Section 8-2-1-42 refer to the particular

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actions of passing, turning, or changing lanes, and a person of common intelligence
can reasonably ascertain which passing, turning, or changing lane maneuvers are
lawful. Further, Defendant presents no evidence to establish that she was attempting
to pull over because she believed Officer Lujan required the lane. Indeed, Defendant
did not pull over, but instead “straddled the line” for sixty to seventy yards and did not
swerve. Only after Officer Lujan initiated his emergency equipment did Defendant
actually pull over. A person of common intelligence would understand that Section
8-2-1-42 prohibited straddling the fog line. 	The metropolitan court did not err in
admitting evidence gathered following the traffic stop.
CONCLUSION
{22} 	We affirm the district court’s affirmance of the metropolitan court order finding
Defendant guilty of driving while intoxicated and failure to maintain her lane.
{23} 	IT IS SO ORDERED.
_______________________________
JAMES J. WECHSLER, Judge
WE CONCUR:

MICHAEL E. VIGIL, Judge

TIMOTHY L. GARCIA, Judge

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