Section 29-1-18 Body-Camera “Bad Faith” Presumption Is Civil-Only; Criminal Sanctions for Unrecorded Interviews Turn on Materiality Under Ware

I. Introduction

In State v. Hubbard (No. S-1-SC-40649, filed Jan. 22, 2026), the Supreme Court of New Mexico affirmed Nicholas M. Hubbard’s convictions for first-degree willful and deliberate murder of his mother and tampering with evidence. The case arose from a violent, multi-stage attack in the home where Defendant lived with his grandmother, followed by Defendant’s conduct in the bathroom with the shower running when police arrived.

The appeal presented multiple issues: (1) whether the evidence was sufficient to prove deliberate intent for first-degree murder despite voluntary intoxication evidence; (2) whether evidence supported lesser-included instructions on voluntary or involuntary manslaughter (raised as fundamental error/ineffective assistance); (3) whether admission of certain physical items and Defendant’s MMA participation was plain error; and (4) whether the district court should have sanctioned the State for officers’ failure to record certain witness interviews, including an argument invoking NMSA 1978, Section 29-1-18 (2020, amended 2023).

Publication note: The Court issued this as a nonprecedential, unpublished disposition under Rule 12-405 NMRA. Even so, the decision is instructive—particularly on the limits of Section 29-1-18 in criminal litigation and the continued centrality of the Ware/Torrez materiality framework for evidence-gathering sanctions.

II. Summary of the Opinion

Sufficiency—first-degree murder: The Court held substantial evidence supported deliberate intent, relying on the prolonged nature of the assault, the extent of injuries (blunt force trauma and strangulation), Defendant’s motive-related statements, and Defendant’s efforts to stop police intervention (911 “no emergency” call).
Sufficiency—tampering with evidence: The Court held that showering to wash blood off his body constituted a completed overt act of “destroy[ing]” or “chang[ing]” evidence under Section 30-22-5(A), even if some blood remained.
No voluntary manslaughter instruction: The Court found no evidentiary basis because “words alone” are insufficient provocation and, in any event, an ordinary person would have cooled off given the continued, multi-room nature of the assault and interruptions.
No involuntary manslaughter instruction: The Court found Defendant’s targeted, intentional attack was inconsistent with the recklessness mens rea for involuntary manslaughter.
Ineffective assistance: No prima facie case; counsel could rationally forgo manslaughter instructions unsupported by evidence.
No plain error: Admission of photos/testimony about a bent broomstick and brass-knuckle-handled knife was relevant and not unfairly prejudicial; MMA evidence, even if questionable, did not rise to plain error given the overall evidence.
No sanctions for unrecorded interviews: Section 29-1-18 (2020) provides civil tort remedies only and does not supply criminal-case remedies. Under State v. Ware and State v. Torrez, the unrecorded interviews were immaterial; thus sanctions were unwarranted.

III. Analysis

A. Precedents Cited (and How They Shaped the Decision)

1. Standards of review: substantial evidence, “law of the case,” and deference to the verdict

State v. Duran: Supplied the core substantial-evidence formulation—whether evidence supports guilt beyond a reasonable doubt for each element. This framed the Court’s posture of affirmance unless the record lacks “substantial evidence.”
State v. Arrendondo: Reinforced that sufficiency is measured against the jury instructions as “the law of the case,” directing the Court to evaluate proof of “deliberate intention” per UJI 14-201 and tampering elements per the instruction given.
State v. Largo: Emphasized appellate deference—resolve conflicts in favor of the State, indulge reasonable inferences supporting the verdict, disregard contrary inferences. This was pivotal where the defense urged intoxication-based incapacity and competing expert opinions.

2. Deliberate intent for first-degree murder (including intoxication evidence)

State v. Smith: Provided the template for inferring deliberation from (i) prolonged nature of killing, (ii) extensiveness of injuries, and (iii) relationship between defendant and victim. The Court mapped these factors onto the bedroom-to-living-room assault, extensive injuries, and mother-son relationship.
State v. Guerra: Supported the inference of deliberation where a victim is incapacitated and then repeatedly attacked with potentially lethal force. The Court used Guerra to analogize Defendant’s continued violence after Victim was unconscious, combined with strangulation.
State v. Cunningham and State v. Largo: Both informed how statements and conduct “around” the killing can evidence deliberation. Here: Defendant’s motive statement to his grandmother and his interference with the 911 call were treated as deliberation-relevant circumstances.
State v. Blea: Confirmed that heavy drinking does not necessarily defeat deliberation; juries may still infer premeditation despite intoxication evidence. This directly countered Defendant’s argument that intoxication made deliberation impossible.
State v. Rojo: Provided the principle that the jury may reject Defendant’s version and experts supporting it; appellate courts do not reweigh credibility. This allowed the Court to uphold the verdict notwithstanding defense experts and a BAC reading.
In re Adoption of Doe: Used to dispose of an undeveloped diminished-capacity theory based on childhood trauma—without cited authority, the Court declined to address it.

3. Tampering with evidence: “completed” acts and partial destruction

State v. Apodaca: Central to the holding that conduct aiming to obstruct investigation suffices for tampering; also specifically recognized cleaning blood as “destroy[ing], chang[ing], or hid[ing]” evidence. The Court extended this logic to showering blood off the body.
State v. McClennen (overruled on other grounds by, State v. Tollardo): Provided the proposition that destroying even a portion of evidence constitutes tampering. This defeated Defendant’s “not completed because some blood remained” argument.

4. Lesser-included instructions and “fundamental error” posture

State v. Benally and State v. Silva: Supplied the fundamental error framework for unpreserved instructional issues: determine first whether there was error; only then consider whether it was fundamental.
State v. Stills and State v. Lobato-Rodriguez: Anchored the voluntary manslaughter analysis—“mere sudden anger” is not enough, and “words alone” are insufficient provocation. The Court treated Victim’s alleged verbal confrontation as legally inadequate provocation.
State v. Yarborough, State v. Henley, and State v. Salazar: Defined involuntary manslaughter’s recklessness mens rea and explained why intentional, targeted violence is inconsistent with that offense. This trilogy drove the conclusion that Defendant’s acts were not “without due caution” in the sense contemplated by involuntary manslaughter, but instead intentional harm.
State v. Franklin and State v. Boyer: Heavily relied upon by Defendant across multiple issues (manslaughter, evidentiary arguments, sanctions), but ultimately not persuasive because the facts did not satisfy New Mexico’s provocation and mens rea thresholds as applied through later, controlling standards.

5. Ineffective assistance of counsel (IAC)

State v. Rivas, Lytle v. Jordan, and Strickland v. Washington: Established the two-prong test, the strong presumption of reasonable strategy, and the requirement of deficient performance plus prejudice.
State v. Garcia: Supported the Court’s acceptance of strategic instructional decisions within the “wide range” of competence; the Court analogized that counsel may reasonably decline instructions unsupported by evidence.
State v. Crocco: Preserved Defendant’s ability to pursue IAC via habeas if extra-record facts exist.

6. Unpreserved evidentiary issues and “plain error” restraint

State v. Chavez and State v. Montoya: Supplied the “sparingly” applied plain error standard and the requirement that admitted evidence create “grave doubts” about the verdict when viewed in the context of the whole trial.
State v. Motes: Supported the relevance of the “manner” of killing to intent; helped justify admission of the broomstick/knife evidence to prove deliberation.
State v. Soto: Used by analogy to show relevance is a low threshold; evidence need not conclusively prove the point to be relevant under Rule 11-401.
State v. Bailey, State v. Otto, and State v. Anderson: Framed Rule 11-403 balancing and defined “unfair prejudice” as suggesting decision on an improper basis; supported deference to the district court’s admissibility determinations.
State v. Muller and State v. Flores: Reinforced that plain error is context-dependent and that an appellant must develop arguments showing how an evidentiary ruling affected fairness and the verdict.

7. Sanctions for failure to gather/collect evidence and the Section 29-1-18 argument

State v. Ware: Provided the two-step sanctions test: (1) materiality to the defense (legal question); (2) if material, assess culpability (negligence vs bad faith) and consider appropriate sanctions (including adverse-inference instructions for gross negligence).
State v. Torrez: Clarified that materiality requires a reasonable probability of a different outcome and that courts do not reach step two unless step one is satisfied. The Court treated Torrez as dispositive once it found the unrecorded interviews immaterial/duplicative/speculative.

B. Legal Reasoning

1. Deliberate intent: the Court’s synthesis of conduct, injuries, statements, and interference

The Court applied UJI 14-201’s definition of deliberate intent (“weigh and consider” rather than “unconsidered and rash impulse”) and held deliberation may be inferred from “all the facts and circumstances.” It identified multiple, mutually reinforcing indicators:

Prolongation and staging: the attack moved from bedroom to hallway to living room; it stopped/started and continued after Victim was unconscious.
Severity and multiplicity of injuries: extensive blunt-force trauma plus strangulation injuries supported a finding of intentional life-taking.
Motive-laden statement: Defendant told his grandmother he was hurting Victim because she spanked him as a child—supporting purposive action.
Concealment/avoidance behavior during the event: Defendant took the phone, told dispatch there was “no emergency,” offered a false account, and continued the assault.

On voluntary intoxication, the Court relied on the jury instruction (UJI 14-5110) and treated intoxication as an evidentiary factor the jury could accept or reject. The State’s expert testimony, the time gap between drinking and the killing, officer observations of calm demeanor, and Defendant’s coherent deception to dispatch supported the jury’s finding that intoxication did not negate deliberation.

2. Tampering with evidence: “completed” tampering does not require total success

Defendant’s “incomplete because blood remained” theory was rejected as inconsistent with the statutory verbs (“destroy, change, hide, place, fabricate”) and with prior holdings that even partial destruction can constitute tampering. The Court reasoned that washing blood down the drain can destroy or change biological trace evidence, and the presence of some remaining blood does not negate the existence of an overt act satisfying Section 30-22-5(A).

3. Manslaughter instructions: matching legal predicates to the evidentiary record

For voluntary manslaughter, the Court applied the requirement of “sufficient provocation” and treated a mere verbal confrontation as legally inadequate (“words alone”). It also invoked the “cooling off” concept from UJI 14-222, emphasizing the duration and interruptions (movement between rooms, speaking to grandmother, speaking to dispatch) as inconsistent with sudden heat-of-passion killing.

For involuntary manslaughter, the Court focused on mens rea: recklessness versus intentional targeting. It treated the evidence as showing a specific, directed assault against Victim that persisted despite resistance and opportunities to stop—behavior aligning with intentional violence rather than negligence/recklessness.

4. Evidence and trial fairness: relevance and Rule 11-403 “unfair prejudice”

The broomstick/knife evidence was deemed relevant because it tended to prove the manner of death and, therefore, intent. Under Rule 11-403, the Court emphasized that prejudice is not enough; it must be “unfair prejudice” suggesting decision on an improper basis. Given the State’s need to prove deliberation, photographs and testimony about nearby bloodied objects plausibly used in the attack were not unfairly prejudicial.

As to MMA evidence, the Court assumed arguendo it might be improper character evidence but held the high threshold for plain error was not met, chiefly because the other evidence of deliberation and guilt was strong and Defendant did not show the MMA testimony “significantly affect[ed] the verdict.”

5. Body-camera nonrecordings: statutory limits and the continued primacy of materiality

The Court’s most distinct doctrinal clarification concerned Section 29-1-18 (2020). Defendant argued that subsection (B)’s “presumed bad faith” language should translate into criminal-case sanctions (e.g., spoliation instruction). The Court rejected that, holding the statute’s remedies are “civil tort remedies” only—i.e., “negligent spoliation” or “intentional spoliation” tort liability—and therefore “unavailable in criminal cases.”

Independently, the Court applied Ware and Torrez and upheld the district court’s finding that the unrecorded interviews were immaterial: accounts of intoxication were duplicative of police reports and other evidence, defense counsel could have interviewed witnesses, and the time lapse between drinking and the killing reduced probative force for the voluntary intoxication defense. Because step one (materiality) failed, step two (culpability/bad faith and sanctions) was never reached.

C. Impact

Although unpublished and nonprecedential under Rule 12-405 NMRA, State v. Hubbard has practical significance in three areas:

Section 29-1-18 in criminal litigation: The opinion squarely characterizes Section 29-1-18(B) (2020) as creating only civil enforcement mechanisms, limiting defense efforts to import the statute’s “bad faith” presumption into criminal evidentiary sanctions. Future litigants should expect courts to require a separate criminal-law basis (e.g., due process, discovery rules, or Ware-type doctrines) rather than the statute itself.
Evidence-gathering sanctions remain materiality-driven: The decision reinforces that claims based on missing recordings will often rise or fall on whether the missing material is nonduplicative and outcome-significant under Ware and Torrez.
Tampering by cleaning: Building on State v. Apodaca, the case underscores that efforts to wash away blood can be “completed” tampering even when not entirely successful—important for charging decisions and defense assessments where the defendant is found cleaning or showering.

IV. Complex Concepts Simplified

“Deliberate intent” (first-degree willful and deliberate murder): Not just intending to hurt, but having time—sometimes very brief—to consider the choice to kill and proceed anyway. Juries can infer it from circumstances (duration, repeated blows, strangulation, statements, concealment).
Voluntary intoxication: It does not excuse crime by itself. It is evidence the jury may consider on whether Defendant could form a specific intent (here, deliberate intent). The jury can reject intoxication-based incapacity if other evidence shows coherent, purposeful conduct.
Voluntary manslaughter (“heat of passion”): Requires sufficient provocation—something that would cause an ordinary person to lose self-control—and the response must be before an ordinary person would cool off. New Mexico law repeatedly holds “words alone” are not enough.
Involuntary manslaughter: Covers unintentional killings caused by recklessness or criminal negligence during a lawful act. A targeted, intentional beating/strangulation generally does not “fit” this category.
Tampering with evidence: Any act to destroy/change/hide evidence with the intent to prevent apprehension or prosecution. You do not need to succeed completely; partial destruction (e.g., washing some blood away) can suffice.
Fundamental error vs. plain error: Both are demanding standards for unpreserved issues. Fundamental error concerns exceptional cases where the conviction is shocking because guilt is doubtful; plain error focuses on whether an evidentiary mistake created grave doubt about the verdict when viewing the whole trial.
Materiality (missing evidence sanctions): Missing evidence matters legally only if there is a reasonable probability the result would have been different had it existed and been available to the defense. Duplicative or speculative missing recordings usually fail this test.

V. Conclusion

State v. Hubbard affirms a first-degree murder conviction by emphasizing classic indicia of deliberation—prolonged assault, extensive injuries, motive statements, and concealment/interference— and holds that showering off blood can constitute tampering even if not fully successful. Most notably, the Court limits Section 29-1-18 (2020)’s “bad faith” presumption and remedies to civil tort enforcement, and it reiterates that criminal-case sanctions for uncollected or unrecorded evidence are governed by State v. Ware and State v. Torrez, beginning—and often ending— with the threshold question of materiality.