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State v. House11/20/1997
ative view of the jurors, Defendant has not demonstrated how testimony from the jurors would have made a difference. See ("An assertion of prejudice is not a showing of prejudice."), overruled on other grounds by .
{59} The second factor referred to by Defendant concerns whether there was a likelihood of any substantial difference in a subsequent retrial. Defendant argues that the district court applied the second factor incorrectly by focusing on the likelihood of a substantial difference in the outcome of a third trial instead of a difference in evidence at a third trial. However, Defendant's argument is misleading because the district court's order clearly perceives the distinction and believes that the case law it was relying on would support its approach. In the absence of adequate argument and authority on this point from Defendant, see , we find no basis for reversal.
MIT\ The third factor that Defendant mentions concerns the court's own evaluation of the relative strengths of each party's case. Defendant challenges the district court's very ability to consider the relative strengths and weaknesses of each party's case since it had yet to preside over a trial. We find the district court's decision to take judicial notice of the court record to make that decision reasonable and necessary, particularly where Defendant has not demonstrated how it would have made a difference if Judge Allen or Judge Blackhurst had evaluated this factor. See
{61} The fourth factor discussed by Defendant concerns the professional conduct and diligence of trial counsel. Defendant again argues that the district court failed to take into account the district attorney's conduct when weighing this factor. Assuming that is true, Defendant acknowledges that the district court did take District Attorney Schwartz's conduct into account in another factor. As such, this point does not establish reversible error because we are confident that the district court considered the district attorney's conduct in reaching its decision.
{62} Defendant also touches upon two more factors concerning the prosecution's decision to pursue a third trial, and the hardship imposed on Defendant. The district court's order recites sufficient justification for its weighing of these factors. The fact that the district court is not focusing on the same information as Defendant does not amount to reversible error, particularly when Defendant has failed to adequately argue or cite to the record. . In sum, none of the cursory arguments raised by Defendant persuade us that the district court erred in denying Defendant's motion to dismiss.
B. Blood-Alcohol Test Results
{63} Defendant contends that this Court's recent opinion in , requires suppression of the blood-alcohol test results obtained from his medical treatment records concerning his medical treatment shortly after the accident. Roper establishes that the blood test results are a privileged communication. . The real issue is whether an exception under Rule 11-504(D)(3), NMRA 1997 existed because the privileged communication was relevant to Defendant's defense. Simply pleading not guilty does not raise a defense. . However, Defendant did not simply plead not guilty and remain silent. Defendant aggressively pursued his migraine defense. Defendant argues that his blood-alcohol test results were not related to his defense of a migraine headache and should have been suppressed. However, we agree with the State that Defendant's blood-alcohol test results were relevant to his migraine defense. Consequently, Defendant waived the privilege set forth in Roper by raising his affirmative defense. Accordingly, we hold that the district court did not
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