The trial of Alexee Trevizo, accused of smothering her baby in a trash can after giving birth in a hospital emergency room, has been delayed as the prosecution and defense debate the inclusion of crucial evidence before the New Mexico Supreme Court.

Police said Trevizo, 20, gave birth to the child in a bathroom at the Artesia General Hospital in January 2023 and put him in a nearby trash can where he died of suffocation. She was charged with first-degree murder and tampering with evidence.

Trevizo’s case was scheduled to go before Fifth Judicial District Judge Jane Shuler-Gray in a jury trial Aug. 26 at Eddy County District Court but was delayed after the Fifth Judicial District Attorney’s Office appealed a ruling by Shuler-Gray to throw out evidence gathered by police at the hospital.

Court suppresses evidence, appeal filed In a motion to suppress the evidence Trevizo’s attorney Gary Mitchell argued that statements made by Trevizo and her mother at the hospital were protected by doct or-patient privilege and that she was not properly read her rights against self-incrimination when talking to police at the scene.

Shuler-Gray ruled in favor of the defendant in a sealed opinion, and Fifth Judicial District Attorney Dianna Luce filed an appeal to the state Supreme Court July 18.

Records show the Aug. 26 trial date was canceled as the Supreme Court considers the case, with a Sept. 13 deadline set for the “brief in chief” to present the facts of the appeal. Subsequent answer and reply briefs would be submitted within 60 days from that date, according to a timeline set by the Supreme Court in a July 31 notice.

The argument to suppress Trevizo’s statements hinged on what she said to hospital staff after the baby was found dead. Her comments were entered as evidence by the prosecution.

Records show she told a doctor at the hospital “I’m sorry…it came out of me…I didn’t know what to do,” which prosecutors argued was an admission of guilt in the murder.

Mitchell also contended Trevizo’s medical records were improperly provided by the hospital to law enforcement, a violation, he said, of the federal Health Information Portability and Accountability Act (HIPAA).

The prosecution responded in a subsequent filing that HIPAA did not protect records needed for the criminal investigation, and that Trevizo’s statements were made voluntarily while she was not under arrest or any pressure by police. The presence of Trevizo’s mother, a third party, in the room removed doctor-patient privilege, prosecutors argued.

Hospital fights subpoena As Trevizo’s statements were being debated in the Supreme Court, Artesia General Hospital and the defense could face another challenge as Artesia General Hospital sought to quash subpoenas issued by Mitchell and Trevizo’s defense.

On Aug. 5, the hospital wrote in its motion that the defense improperly attempted to serve the subpoena on July 25. That’s because it was addressed to the Artesia Special Hospital District, a separate entity from Artesia Genera Hospital, the motion said.

The subpoena could be key to the defense since it requested Trevizo’s medical files generated by the hospital such as her history of injury, x-rays, diagnostics and any notes from doctors or nurses. The court has yet to rule on the motion to quash, and a hearing on the issue is scheduled for Aug. 22.

Adrian Hedden can be reached at 734-972-6855, achedden@currentargus. com or @AdrianHedden on the social media platform X.