N.M. R. Crim. P. Dist. Ct. 5-614
N.M. R. Crim. P. Dist. Ct. 5-614
Committee commentary. - Paragraphs A and D of this rule were derived from Rules 3.580 and 3.590 of the Florida Rules of Criminal Procedure. Paragraph C of this rule was derived from Rule 33 of the Federal Rules of Criminal Procedure.
A motion for a new trial on grounds other than newly discovered evidence must be made within ten (10) days after the verdict and before the judgment is entered. State v. Wilson, 1974-NMCA-059, ¶ 11, 86 N.M. 348, 524 P.2d 520.
For the test used for granting a new trial on newly discovered evidence, see State v. Chavez, 1974-NMCA-138, ¶ 12, 87 N.M. 38, 528 P.2d 897.
A motion under this rule that is filed not later than thirty (30) days after the filing of the judgment tolls the time for appeal under the Rules of Appellate Procedure. See Rule 12-201(D)(1)(b) NMRA (2016).
[As amended by Supreme Court Order No. 16-8300-014, effective for all cases pending or filed on or after December 31, 2016.]
ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-014, effective December 31, 2016, in the committee commentary, added the last sentence regarding tolling the time for appeal under the Rules of Appellate Procedure, and provided vendor neutral citations for cited cases. The 2009 amendment, approved by Supreme Court Order 09-8300-006, effective May 6, 2009, in Paragraph C, deleted the last sentence, which provided that if a motion for new trial is not granted within thirty days for the date it is filed, the motion is automatically denied. Applicability. - This rule has not been preempted by Rule 5-802. State v. Peppers, 1990-NMCA-057, 110 N.M. 393, 796 P.2d 614. Unusual circumstances causing delay in ruling on motion - Where the defendant claimed that he had a mental defect that was not discoverable prior to trial; defense counsel informed the trial court at the sentencing hearing that the defendant would file a motion for a new trial based on the evaluations of the state's psychologists and the defendant's psychologist; the court continued the sentencing hearing and ordered defense counsel to request a hearing upon receipt of the defendant's psychologist's report; the court set a hearing on the motion when the defendant received his psychologist's report; and the court decided the motion within ninety days after hearing the motion, the fourteen-month delay between the time the defendant filed his motion for a new trial and the time that it was granted was not unreasonable and the trial court did not abuse its discretion when it granted the motion for a new trial. State v. Moreland, 2008-NMSC-031, 144 N.M. 192, 185 P.3d 363. Newly discovered evidence. - Where evidence that the defendant had a mental condition, which caused him to have a diminished capacity to reason on a day-to-day basis and which was greatly exacerbated by methamphetamine, was discovered from post-trial psychological reports; the evidence was discovered only because the trial court ordered a diagnostic evaluation of the defendant; and the evidence of the defendant's diminished mental capacity could not have been discovered by the exercise of due diligence because the defendant's mental defects typically had no outward manifestation and trained professionals would be unable to diagnose the defendant without formal psychological tests, the trial court did not abuse its discretion when it granted the defendant's motion for a new trial based on newly-discovered evidence. State v. Moreland, 2008-NMSC-031, 144 N.M. 192, 185 P.3d 363. Determination of ineffective assistance of counsel without a hearing. - Where the trial court witnesses gross or obvious ineffective assistance of counsel, the court may on its own motion order a new trial without holding a hearing on the issue of ineffective assistance of counsel. State v. Grogan, 2007-NMSC-039, 142 N.M. 107, 163 P. 3d 494. Motions for a new trial are not favored and will only be granted upon a showing of a clear abuse by the trial court. State v. Stephens, 1982-NMSC-128, 99 N.M. 32, 653 P.2d 863. Failure to enter order denying motion for new trial. - Where district court failed to enter an order denying defendant's motion for a new trial within thirty days, the motion was deemed automatically denied and defendant could challenge the denial of the motion on appeal even though a final, written order denying the motion had not been filed by the district court. State v. Huber, 2006-NMCA-087, 140 N.M. 147, 140 P.3d 1096, cert. denied, 2006-NMCERT-007. An individual has a qualified right to release pending a motion for a new trial, even after appellate affirmance of a conviction. Such a right, however, can be invoked only by a timely motion for a new trial, and by a motion for release pending a motion for a new trial duly filed and served in the manner required by Rule 23, R. Crim. P. (Dist. Cts.) (see now Rule 5-402 NMRA). In re Martinez, 1982-NMSC-115, 99 N.M. 198, 656 P.2d 861. Judgment not required for finality. - Although Paragraph C requires that a motion for new trial be made and decided before the entry of judgment and sentence, the lack of a judgment and sentence does not make a difference for finality purposes and remains a final appealable order. State v. Danek, 1993-NMCA-062, 117 N.M. 471, 872 P.2d 889. Evidence admissible at hearing for new trial. - The trial court did not err in not admitting into evidence at the hearing for a new trial the statement of a state eyewitness which purportedly contradicted previous trial testimony where, the statement did not contradict previous testimony, but was merely cumulative of the defense propounded. State v. Stephens, 1982-NMSC-128, 99 N.M. 32, 653 P.2d 863. It is improper for a trial court to consider a letter from one of the jurors which allegedly impeached the verdict. State v. Chavez, 1982-NMSC-108, 98 N.M. 682, 652 P.2d 232. Where counsel may later ascertain true facts, continuance properly denied. - Where nothing prohibits the defense counsel from attempting to ascertain the true facts after trial and moving for a new trial based on newly discovered evidence, the trial court does not abuse its discretion in refusing to grant a continuance. State v. Manus, 1979-NMSC-035, 93 N.M. 95, 597 P.2d 280. Conditions for granting new trial for newly discovered evidence. - A motion for a new trial upon the ground of newly discovered evidence calls for the exercise of the sound discretion of the trial court and is properly denied unless the newly discovered evidence is such that (1) it will probably change the result if a new trial is granted; (2) it must have been discovered since the trial; (3) it must be such that it could not have been discovered before trial by the exercise of due diligence; (4) it must be material to the issue; (5) it must not be merely cumulative; and (6) it must not be merely impeaching or contradictory. State v. Ramirez, 1968-NMSC-148, 79 N.M. 475, 444 P.2d 986; State v. Volpato, 1985-NMSC-017, 102 N.M. 383, 696 P.2d 471; State v. Shirley, 1985-NMCA-120, 103 N.M. 731, 713 P.2d 1. A motion for new trial will be permitted to be filed where it is done promptly, and there is no evidence connecting defendant to the crime excepting the testimony of an accomplice who has recanted, when the testimony is not merely cumulative or corroborative, where the evidence has become available since the trial and was not available during the trial, and where the recanting occurred under circumstances free from suspicion of undue influence or pressure from any source, so that it is as reasonable to believe one of the statements under oath as the other. State v. Fuentes, 1959-NMSC-060, 66 N.M. 52, 342 P.2d 1080 (decided under former law). Even if another person is prepared to testify, or has confessed that he, and not another, has committed a crime for which another was convicted, such evidence is not newly discovered evidence since such a person can add nothing to the testimony the defendant could have given at trial. State v. Stephens, 1982-NMSC-128, 99 N.M. 32, 653 P.2d 863. Defendant did not meet criteria for "newly discovered evidence". State v. Fero, 1988-NMSC-053, 107 N.M. 369, 758 P.2d 783. No abuse of discretion in denying motion for new trial where "newly discovered evidence" would only serve to impeach a witness. - Where defendant was convicted of human trafficking, promoting prostitution, accepting earnings from a prostitute, contributing to the delinquency of a minor, and conspiracy, and where defendant filed a motion for a new trial, claiming that newly discovered evidence demonstrated that the alleged victim had not been truthful during her trial testimony, the trial court did not abuse its discretion in denying defendant's motion, because evidence that gives rise to a motion for new trial based on newly discovered evidence must not be merely impeaching or contradictory, and the proffered evidence from a recorded conversation between the victim and defendant's sister merely went to the truthfulness of the victim's testimony. State v. Jackson, 2018-NMCA-066, cert. denied. Movant for new trial must show prejudice. - Defendant contending that he should be granted a new trial because an excessive number of leading questions were allowed over defense attorney's objections had the burden of showing prejudice. State v. Gomez, 1971-NMCA-009, 82 N.M. 333, 481 P.2d 412 (decided under former law). In arguing that he is entitled to a new trial, the defendant must show that he was prejudiced by the state's failure to disclose evidence material to the defense. State v. Garcia, 1979-NMSC-049, 93 N.M. 51, 596 P.2d 264. Prosecutorial misconduct was not prejudicial. - Where the state began its opening statement with a statement that came close to appealing to the passions and prejudices of the jury; defendant objected and the trial court instructed the state to restrict its opening statement to what the evidence would show; and defendant did not request a curative instruction, the trial court did not abuse its discretion in allowing the trial to proceed after sustaining defendant's objection. State v. Loya, 2011-NMCA-077, 150 N.M. 373, 258 P.3d 1165, cert. denied, 2011-NMCERT-006, 150 N.M. 763, 266 P.3d 632. Prejudicial effect may be cured by prompt admonition. - A prompt admonition from the court to the jury to disregard and not consider inadmissible evidence sufficiently cures any prejudicial effect which otherwise might result, and an offer to admonish, even though declined, is sufficient to support a denial of a motion for mistrial. State v. Vialpando, 1979-NMCA-083, 93 N.M. 289, 599 P.2d 1086, cert. denied, 93 N.M. 172, 598 P.2d 215. Trial court did not abuse its discretion in denying motion for mistrial based on the presence of security personnel at trial. - In defendant's trial for first degree murder, where defendant moved for a mistrial due to the presence of excessive security during the trial, the trial court did not abuse its discretion by denying defendant's motion for mistrial because all the jurors affirmed that the security did not affect their ability to be fair and impartial. State v. Romero, 2019-NMSC-007. Trial court did not abuse its discretion in denying motion for mistrial based on prosecutor's misstatement of law. - In defendant's prosecution for aggravated driving while under the influence of intoxicating liquor or drugs (DUI), where defense counsel objected and moved for a mistrial after the prosecutor misstated the legal standard for DUI, the trial court did not abuse its discretion in denying defendant's motion, because the record established that the trial court sustained defense counsel's objection, characterized the prosecutor's statement as a misstatement of the law and told the prosecutor to rephrase his statement, and where defense counsel did not object to the prosecutor's rephrasing of the legal standard for DUI. State v. Storey, 2018-NMCA-009, cert. denied. Where the trial court communicated with defendant's DNA expert midtrial in an attempt to expedite the DNA expert's analysis, the trial court did not abuse its discretion in denying defendant's motion for mistrial, because the trial court's communication with the expert witness was procedural and not substantive, designed to assure compliance with quick deadlines so the trial could resume as soon as possible, and it did not unduly interfere with defendant's right to have independent and confidential expert services. State v. Smith, 2016-NMSC-007. In defendant's trial for murder, the prosecutor's comments that the defense counsel was difficult and hard to work with are, at most, unprofessional comments, and where motions for mistrial were filed by defendant on the basis of a trial recess, which lasted only ten days, was granted for the sole purpose of benefitting defendant and was properly within the scope of the trial court's inherent authority to control and manage the trial proceedings and preserve the integrity of the trial process, defendant's allegations fall short of the conduct demanding mistrial; the trial court properly denied defendant's numerous motions for mistrial and did not abuse its discretion. State v. Smith, 2016-NMSC-007. No abuse of discretion in denying motion for mistrial where defendant opened the door to inquiry into inadmissible evidence. - Where the district court granted the defendant's motion to exclude evidence of defendant's affiliation with the Black Berets Motorcycle Gang, the district court did not abuse its discretion in denying defendant's motion for a mistrial based on the prosecutor's questions on cross-examination inquiring whether the Black Berets were a motorcycle gang and whether the Black Berets were affiliated with the Banditos organized motorcycle gang, because defendant opened the door to cross-examination under the doctrine of curative admissibility when he testified on direct examination that the Black Berets Motorcycle Club was a charitable club. State v. Comitz, 2019-NMSC-011. Granting or denial of motion for new trial is within the court's discretion and is not reviewable except for an abuse of that discretion. Sierra Blanca Sales Co. v. Newco Indus., Inc., 1972-NMCA-153, 84 N.M. 524, 505 P.2d 867, cert. denied, 84 N.M. 512, 505 P.2d 855; State v. Volpato, 1985-NMSC-017, 102 N.M. 383, 696 P.2d 471. Trial courts have broad discretion in granting or denying new trials. Mares v. State, 1971-NMSC-106, 83 N.M. 225, 490 P.2d 667 (decided under former law). A motion for mistrial is addressed to the trial court's discretion and is reviewable on the basis of an abuse of discretion. State v. Thurman, 1972-NMSC-040, 84 N.M. 5, 498 P.2d 697; State v. Garcia, 1979-NMSC-049, 93 N.M. 51, 596 P.2d 264; State v. Perrin, 1979-NMSC-050, 93 N.M. 73, 596 P.2d 516. Where the trial court communicated with defendant's DNA expert midtrial in an attempt to expedite the DNA expert's analysis, the trial court did not abuse its discretion in denying defendant's motion for mistrial, because the trial court's communication with the expert witness was procedural and not substantive, designed to assure compliance with quick deadlines so the trial could resume as soon as possible, and it did not unduly interfere with defendant's right to have independent and confidential expert services. State v. Smith, 2016-NMSC-007. In defendant's trial for murder, the prosecutor's comments that the defense counsel was difficult and hard to work with are, at most, unprofessional comments, and where motions for mistrial were filed by defendant on the basis of a trial recess, which lasted only ten days, was granted for the sole purpose of benefitting defendant and was properly within the scope of the trial court's inherent authority to control and manage the trial proceedings and preserve the integrity of the trial process, defendant's allegations fall short of the conduct demanding mistrial; the trial court properly denied defendant's numerous motions for mistrial and did not abuse its discretion. State v. Smith, 2016-NMSC-007. A motion for a new trial is addressed to the discretion of the trial court and will be reversed only for a clear abuse of discretion. State v. Wright, 1972-NMCA-073, 84 N.M. 3, 498 P.2d 695; State v. Smith, 1979-NMSC-020, 92 N.M. 533, 591 P.2d 664; State v. Manus, 1979-NMSC-035, 93 N.M. 95, 597 P.2d 280; State v. Perez, 1980-NMSC-143, 95 N.M. 262, 620 P.2d 1287. The discretion of a trial court is not to be lightly interfered with as to the granting of a motion for new trial. State v. Chavez, 1974-NMCA-138, 87 N.M. 38, 528 P.2d 897. The trial court has broad discretion in granting or denying a motion for new trial, and such an order will not be reversed absent clear and manifest abuse of that discretion. State v. Chavez, 1982-NMSC-108, 98 N.M. 682, 652 P.2d 232. The trial court has broad discretion in granting or denying a motion for new trial, and such an order will not be reversed absent clear and manifest abuse of that discretion. State v. Chavez, 1982-NMSC-108, 98 N.M. 682, 652 P.2d 232. Trial court may not weigh evidence and credibility of witnesses when considering a new trial order based on erroneous jury verdict. State v. Chavez, 1984-NMSC-018, 101 N.M. 136, 679 P.2d 804, overruled on other grounds by State v. Griffin, 1994-NMSC-061, 117 N.M. 745, 877 P.2d 551. Supreme court's power to remand case for filing of motion for new trial. - The supreme court has inherent power to prevent miscarriages of justice in a proper case by remanding the case to the trial court with instructions that the defendant be permitted to file a motion for a new trial upon the ground of newly discovered evidence. State v. Fuentes, 1959-NMSC-060, 66 N.M. 52, 342 P.2d 1080 (decided under former law). Newly discovered evidence must be presented or its absence explained. - To obtain a new trial on the grounds of newly discovered evidence, there must be a showing that there is in fact such evidence; movant must inform the court as to this evidence or satisfactorily explain why it is not presented to the court. State v. Lucero, 1977-NMCA-021, 90 N.M. 342, 563 P.2d 605, cert. denied, 90 N.M. 636, 567 P.2d 485. Showing that newly discovered evidence could not have been obtained earlier. - Even when newly discovered evidence is shown to exist, certain requirements must be met in order to obtain a new trial on the basis thereof, including the requirement that the newly discovered evidence must be such as by reasonable diligence on the part of the defendant could not have been secured at the former trial. State v. Lucero, 1977-NMCA-021, 90 N.M. 342, 563 P.2d 605, cert. denied, 90 N.M. 636, 567 P.2d 485. The denial of a motion for new trial based on newly discovered evidence is appropriate where defense counsel was aware of the evidence prior to trial. - Where defendant was convicted of criminal sexual penetration of a minor, criminal sexual contact of a minor, and bribery of a witness, and where defendant filed a motion for new trial based on newly discovered evidence that the State had filed, and later dismissed, sexual abuse charges against the victim's stepfather based on allegations the victim made, but later recanted, while defendant's case was pending, the district court did not abuse its discretion in denying defendant's motion for a new trial, because there was evidence establishing that defense counsel was aware of the stepfather's case in which the victim had made accusations similar to those made in defendant's case, was aware of the victim's recantation, and was aware of the State's dismissal of the stepfather's case, and defendant failed to demonstrate that defense counsel could not have discovered the recantation until after trial. State v. Miera, 2018-NMCA-020. Where newly discovered evidence will not change result. - Where it does not appear that the newly discovered evidence would probably change the result if a new trial were granted, the trial judge has not abused his discretion in denying the motion for new trial. State v. Ramirez, 1968-NMSC-148, 79 N.M. 475, 444 P.2d 986 (decided under former law) State v. Litteral, 1990-NMSC-059, 110 N.M. 138, 793 P.2d 268. Where defendant alleged that defendant had discovered that a witness at defendant's trial had committed perjury at a co-defendant's trial because the witness had lied about the color and type of gun the co-defendant possessed; the evidence was not substantive, but merely impeaching evidence; the co-defendant's gun was not material to defendant's case; and the evidence was cumulative of defendant's impeachment of the witness at defendant's trial, the court did not abuse its discretion in denying defendant's motion for a new trial. State v. Gallegos, 2011-NMSC-027, 149 N.M. 704, 254 P.3d 655. Newly discovered, cumulative evidence insufficient basis for new trial. - Where the testimony which the defendant claimed was newly discovered would have been merely cumulative, the trial court did not abuse its discretion in denying the motion for a new trial. State v. Perez, 1980-NMSC-143, 95 N.M. 262, 620 P.2d 1287. District court did not abuse its discretion in denying defendant's motion for new trial. - Where defendant, following his conviction for voluntary manslaughter, requested a new trial on the grounds of juror bias, newly discovered evidence and the district court's failure to instruct the jury regarding the timing of a break during defendant's closing argument, the district court did not abuse its discretion in denying defendant's motion where defendant failed to show that the juror was biased or impartial, failed to show that the existence of the requested evidence could not have been discovered before trial by the exercise of due diligence, and failed to demonstrate that the timing of the break prejudiced him. State v. Hobbs, 2016-NMCA-006, cert. denied, 2015-NMCERT-012. Where the trial court grants a new trial in the "interest of justice", "in the interest of justice" is not the grounds upon which the motion for a new trial was based, but the standard used by the court in determining that a new trial is required. State v. Chavez, 1982-NMSC-108, 98 N.M. 682, 652 P.2d 232. Statement of grounds. - In order to preserve the opportunity for effective appellate review, it is necessary that the trial court comply with the requirement in Subdivision (d) (see now Paragraph D) that a motion for new trial "shall fully set forth the grounds upon which it is based" when granting a sua sponte motion. State v. Chavez, 1982-NMSC-108, 98 N.M. 682, 652 P.2d 232 If a new trial is properly granted because of insufficient evidence to sustain the jury's verdict, retrial is precluded. State v. Chavez, 1982-NMSC-108, 98 N.M. 682, 652 P.2d 232. The district court erred in granting a new trial based on insufficiency of the evidence. - Where defendant was convicted by a jury of driving while under the influence of intoxicating liquor (DWI), and where, following trial, the district court, sua sponte, granted a new trial, ruling that there was no evidence that defendant's driving and impairment overlapped, the district court erred in granting a new trial, because no provision in the Rules of Criminal Procedure allows a district court to consider the sufficiency of the evidence after the jury has returned its verdict and enter a judgment contrary to the jury's verdict. Insufficiency of the evidence does not support a motion for a new trial. State v. Willyard, 2019-NMCA-058, cert. denied. Multiplicity of counts as not denying fair trial. - Where four of the eight counts against defendant were dismissed, and the jury acquitted on two counts and convicted on two counts, his argument that the multiplicity of counts and the evidence introduced in connection with those counts deprived him of a fair trial was not supported by the record. State v. Lucero, 1977-NMCA-021, 90 N.M. 342, 563 P.2d 605, cert. denied, 90 N.M. 636, 567 P.2d 485. New trial granted where state's rebuttal witnesses refuse to testify. - Where the prosecutor said that he would call six rebuttal witnesses, with the reasonable implication thereby conveyed to the jury that the witnesses would contradict defendant's testimony, and with the state's knowledge that the witnesses would refuse to talk, then where a witness refused to testify on the grounds the answer may tend to incriminate him, defendant has been prejudiced and a new trial should be granted. State v. Vega, 1973-NMCA-085, 85 N.M. 269, 511 P.2d 755. Once the state has obtained the benefit of the inference of defendant's guilt by a witness and associate of defendant invoking his fifth amendment right not to testify, which is not subject to cross-examination, then the state cannot have the benefit of a presumption that this inference was not prejudicial and shift the burden to defendant to show there was prejudice. State v. Vega, 1973-NMCA-085, 85 N.M. 269, 511 P.2d 755. Where codefendant, who remained silent during trial, offers affidavit. - The trial court did not abuse its discretion in denying defendant's motion for a new trial on the basis of newly discovered evidence, where the evidence offered was the affidavit of a codefendant who had invoked her fifth amendment right not to testify at defendant's trial. State v. Smith, 1986-NMSC-038, 104 N.M. 329, 721 P.2d 397. Legal evidence only should reach jury. - It is the right of a defendant accused of crime to have nothing reach the mind of the jury concerning the case except strictly legal evidence admitted according to law, and if facts prejudicial to him reach the jury otherwise, it is the duty of the trial judge to withdraw a juror and grant a new trial. State v. Thayer, 1969-NMCA-086, 80 N.M. 579, 458 P.2d 831 (decided under former law). Misrepresentation or concealment of fact by juror as basis for new trial. - If a juror falsely represents his interest or situation or conceals a material fact relevant to the controversy and such matters, if truthfully answered, might establish prejudice or work a disqualification of the juror, the party misled or deceived thereby, upon discovering the fact of the juror's incompetency or disqualification after trial, may assert that fact as ground for and obtain a new trial, upon a proper showing of such facts, even though the bias or prejudice is not shown to have caused an unjust verdict, it being sufficient that a party, through no fault of his own, has been deprived of his constitutional guarantee of a trial of his case before a fair and impartial jury. Mares v. State, 1971-NMSC-106, 83 N.M. 225, 490 P.2d 667 (decided under former law). Time limit for raising issue of disqualification of juror. - Where the motion for a new trial asserted that a juror gave false answers on voir dire regarding her acquaintance with defendant, such bore on the qualifications of the person to serve as a juror and involved the question of whether defendant was tried by an impartial jury. Such an issue could be raised upon discovering the fact of disqualification after trial and did not have to satisfy the time requirements of Subdivision (c) (see now Paragraph C). State v. Martinez, 1977-NMCA-068, 90 N.M. 595, 566 P.2d 843. Perjury as basis for new trial. - A defendant should be granted a new trial if perjury of a material witness against him is later discovered. However, courts must act with great reluctance and with special care and caution before accepting the truth of a claim of perjury, and should properly require the evidence to affirmatively establish the perjury in such clear and convincing manner as to leave no room for reasonable doubt that perjury was committed. State v. Betsellie, 1971-NMSC-076, 82 N.M. 782, 487 P.2d 484 (decided under former law). When, in the face of what was later described by the defendant as known perjury by a key state witness at his trial, the defendant had ample opportunity to elicit the truth but failed to do so by calling other corroborating witnesses to testify, and elected to remain silent, a new trial would not be granted upon recantation of the allegedly false testimony. State v. Sena, 1985-NMSC-086, 103 N.M. 312, 706 P.2d 854. Misconduct of juror as grounds for new trial. - While misconduct on the part of a juror during a trial is censurable, it is not sufficient grounds for a new trial unless it appears, or is at least presumable, that the accused was thereby prejudiced. State v. Riggsbee, 1973-NMSC-109, 85 N.M. 668, 515 P.2d 964. A trial court's oral ruling granting a motion for new trial satisfies the requirement in Paragraph C that the court grant the motion within 30 days after the motion is filed to avoid the consequence of an automatic denial. State v. Ratchford, 1993-NMSC-024, 115 N.M. 567, 855 P.2d 556. Improperly admitted exhibits not warranting new trial. - Where the evidence, exclusive of improperly admitted exhibits, points so overwhelmingly to the guilt of defendant of the crime of which he was convicted, and there is no reasonable possibility that the admission into evidence of these improperly received exhibits contributed to his conviction, the defendant is not entitled to a new trial. State v. Lopez, 1969-NMCA-057, 80 N.M. 599, 458 P.2d 851, cert. denied, 80 N.M. 607, 458 P.2d 859 (1969), and cert. denied, 398 U.S. 942, 90 S. Ct. 1860, 26 L. Ed. 2d 279 (1970) (decided under former law). Denial of new trial though court not convinced of guilt. - A verdict of the jury will not be set aside because the trial court or the court of appeals is not satisfied beyond all reasonable doubt of the guilt of the defendant, as the guilt or innocence of a defendant is for the jury to determine, not the judge, and granting or denial of a new trial is within the trial court's discretion. State v. Garcia, 1972-NMCA-142, 84 N.M. 519, 505 P.2d 862, cert. denied, 84 N.M. 512, 505 P.2d 855 (1972). Denial of motion for new trial proper where logs not presented to court. - Assuming, but not deciding, that the withholding of certain logs was improper, they were never presented to the trial court so that it could determine whether they were material or whether the withholding prejudiced the defense, and consequently there was no error in denying the motion for a new trial on the grounds asserted by defendant. State v. Lucero, 1977-NMCA-021, 90 N.M. 342, 563 P.2d 605, cert. denied, 90 N.M. 636, 567 P.2d 485. Filing requirement jurisdictional. - The filing requirement in Paragraph C is jurisdictional. State v. Lucero, 2001-NMSC-024, 130 N.M. 256, 30 P.3d 365. Motion for new trial filed 28 days after verdict was correctly ruled as not timely so the asserted error in the trial court's remarks not having been properly brought to the attention of the court was waived. State v. Wilson, 1974-NMCA-059, 86 N.M. 348, 524 P.2d 520. Where record is ambiguous, the court of appeals cannot hold the trial court in error in failing to grant a mistrial on the basis of remarks allegedly made by the prosecutor. State v. Vigil, 1974-NMCA-065, 86 N.M. 388, 524 P.2d 1004, cert. denied, 86 N.M. 372, 524 P.2d 988, cert. denied, 420 U.S. 955, 95 S. Ct. 1339, 43 L. Ed. 2d 432 (1975). Motion for new trial improperly denied. - The trial judge abused his discretion in denying defendant's motion for a new trial on a charge of armed robbery where the store manager, one of three witnesses who identified defendant, later determined that he was not the robber, and another man confessed to being guilty of the crime. Reasonable diligence by defendant could not have secured this testimony for the trial, and it is material and goes to the merits of the case. State v. Chavez, 1974-NMCA-138, 87 N.M. 38, 528 P.2d 897. The trial court erred in refusing to grant defendant a new trial on grounds that her attorney's stipulation to the prosecution's facts and waiver of the issue of competency were the result of a plea bargain with the result that the issue of defendant's competency was never clearly determined or considered. State v. Romero, 1974-NMSC-042, 86 N.M. 244, 522 P.2d 579. Where a juror was present in the dwelling in question with victim, the complaining witness, while two police officers (who testified at trial) were also present seeking latent fingerprints, and victim and juror were good friends, then refusal to grant defendant's motion for a new trial was reversible error. Mares v. State, 1971-NMSC-106, 83 N.M. 225, 490 P.2d 667 (decided under former law). Appeal from order granting new trial. - When the jury reaches a verdict after a trial which is fair and free from error, and such a verdict is set aside, the state is "aggrieved" within the meaning of N.M. Const., art. VI, § 2, and, thus, has authority to appeal an order granting a new trial. State v. Chavez, 1982-NMSC-108, 98 N.M. 682, 652 P.2d 232. Although the state may appeal an order granting a new trial in a criminal case, an immediate appeal is limited to an order in which it is claimed; the grant of a new trial was based on an erroneous conclusion; prejudicial legal error occurred during the trial; or newly-discovered evidence warrants a new trial. Thus, an immediate appeal by the state of an order granting a new criminal trial is limited to issues of law. State v. Griffin, 1994-NMSC-061, 117 N.M. 745, 877 P.2d 551. Grant of new trial proper where state failed to provide notice of intent to use evidence of prior bad acts. - Where defendant was convicted of trafficking a controlled substance by possession with intent to distribute, conspiracy to commit trafficking a controlled substance by possession with intent to distribute, abuse of a child, and possession of drug paraphernalia, the district court did not abuse its discretion in granting defendant's motion for a new trial where the State introduced evidence at trial of prior uncharged controlled drug buys involving defendant and failed to provide reasonable notice to defendant of its intent to introduce such evidence, which was contrary to Rule 11-404(B) NMRA, and where the improper evidence was prejudicial to the defense because the improper evidence was the only evidence linking defendant to the apartment where drugs were found, the only evidence linking defendant to the co-defendant, and the only evidence linking defendant to the drugs. State v. Acosta, 2016-NMCA-003. Two year time limit applied. - Where defendant's motion for a new trial was based on his psychological and psychiatric condition that was not known and was not discoverable at the time of trial and where the district court had not sentenced defendant, the two year time limit applied to defendant's motion. State v. Moreland, 2007-NMCA-047, 141 N.M. 549, 157 P.3d 728, cert. granted, 2007-NMCERT-004. Enlargement of time to rule on motion for new trial. - Where the defendant filed a motion for a new trial at a hearing at which the district court granted a continuance to rule on defendant's sentencing for the purpose of receiving a forensic evaluation by defendant's expert, the district court enlarged the thirty day period to rule on the motion for a new trial as allowed by Rule 104 NMRA. State v. Moreland, 2007-NMCA-047, 141 N.M. 549, 157 P.3d 728, cert. granted, 2007-NMCERT-004. No abuse of discretion. - District court did not abuse its discretion in granting defendant a new trial on the basis of newly discovered evidence that would warrant an instruction on diminished capacity where defendant's psychological and psychiatric condition was not known and was not discoverable at the time of trial and was discovered only because the district court ordered a diagnostic evaluation of defendant. State v. Moreland, 2007-NMCA-047, 141 N.M. 549, 157 P.3d 728, cert. granted, 2007-NMCERT-004. Law reviews. - For article, "Survey of New Mexico Law, 1982-83: Criminal Procedure," see 14 N.M.L. Rev. 109 (1984). Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law § 390. Order denying motion for directed verdict or for judgment notwithstanding the verdict as appealable where movant has been granted a new trial, 57 A.L.R.2d 1198. Absence of convicted defendant during hearing or argument of motion for new trial or in arrest of judgment, 69 A.L.R.2d 835. Formal requirements of judgment or order as regards appealability, 73 A.L.R.2d 250. Own motion of court: propriety of court's grant of new trial on own motion in criminal case, 85 A.L.R.2d 486. Time for filing motion for new trial based on jury conduct occurring before, but discovered after, verdict, 97 A.L.R.2d 788. Propriety and prejudicial effect of prosecutor's argument to jury indicating his belief or knowledge as to guilt of accused - modern state cases, 88 A.L.R.3d 449. Propriety and prejudicial effect of prosecutor's argument giving jury impression that defense counsel believes accused guilty, 89 A.L.R.3d 263. Jury's discussion of parole law as ground for reversal or new trial, 21 A.L.R.4th 420. Emotional manifestations by victim or family of victim during criminal trial as ground for reversal, new trial, or mistrial, 31 A.L.R.4th 229. Postretirement out-of-court communications between jurors and trial judge as grounds for new trial or reversal in criminal case, 43 A.L.R.4th 410. Juror's reading of newspaper account of trial in state criminal case during its progress as ground for mistrial, new trial or reversal, 46 A.L.R.4th 11. Unauthorized view of premises by juror or jury in criminal case as ground for reversal, new trial, or mistrial, 50 A.L.R.4th 995. Court reporter's death or disability prior to transcribing notes as grounds for reversal or new trial, 57 A.L.R.4th 1049. Prosecutor's appeal in criminal case to self-interest or prejudice of jurors as taxpayers as ground for reversal, new trial, or mistrial, 60 A.L.R.4th 1063. Prosecutor's appeal in criminal case to racial, national, or religious prejudice as ground for mistrial, new trial, reversal, or vacation of sentence - modern cases, 70 A.L.R.4th 664. Standard for granting or denying new trial in state criminal case on basis of recanted testimony - modern cases, 77 A.L.R.4th 1031. Negative characterization or description of defendant, by prosecutor during summation of criminal trial, as ground for reversal, new trial, or mistrial - modern cases, 88 A.L.R.4th 8. Inattention of juror from sleepiness or other cause as ground for reversal or new trial, 59 A.L.R.5th 1. What constitutes "newly discovered evidence" within meaning of Rule 33 of Federal Rules of Criminal Procedure relating to motions for new trial, 44 A.L.R. Fed. 13. Time limitation in connection with motions for new trial under Rule 33 of Federal Rules of Criminal Procedure, 51 A.L.R. Fed. 482. What standard, regarding necessity for change of trial result, applies in granting new trial pursuant to Rule 33 of Federal Rules of Criminal Procedure for newly discovered evidence of false testimony by prosecution witness, 59 A.L.R. Fed. 657. Juror's reading of newspaper account of trial in federal criminal case during its progress as ground for mistrial, new trial, or reversal, 85 A.L.R. Fed. 13. Recantation of testimony of witness as grounds for new trial - federal criminal cases, 94 A.L.R. Fed. 60. 66 C.J.S. New Trial § 177 et seq.