November 18, 2014 – State v. Martinez, No. 32,942

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: November 18, 2014

NO. 32,942

STATE OF NEW MEXICO,
Plaintiff-A ppellant,

V.

JOSEPH MARTINEZ,
Defendant-A ppellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Judith K. Nakamura, District J udge

Gary K. King, Attomey General
Santa Fe, NM
M. Anne Kelly, Assistant Attomey General

Albuquerque, NM

for Appellant

Bregman & Loman, P.C.
Sam Bregman

Enc Loman
Albuquerque, NM

for Appellee

OPINION

ZAMORA, Judge.
{1} 	The central issues presented in this case are: (1) whether this Court can consider
the State’s new argument against suppression of the alleged victim’s testimony in light
of the procedural posture of the case, and (2) if so, did the district court err in denying
the State’s motion for reconsideration of the suppression order.
I. 	BACKGROUND
A. 	Factual Background
{2} 	Bernalillo County Sheriff’s Deputies were dispatched to Defendant’s home in
response to an “open-line” static 911 call. The deputies entered the large rural home
based on the 911 call and what appeared to be a disheveled room behind an unlocked
sliding glass door. They did not find an active emergency but discovered drugs and
drug paraphernalia, as well as videos and photographs that appeared to be child
pornography. The deputies called the Bernalillo County Sheriff’s Office to prepare a
search warrant.
{3} 	In the meantime, Defendant arrived home. He was transported from his home
to the sheriff’s office in downtown Albuquerque and questioned. Defendant admitted
that the drugs in the house were for personal use. He also admitted that he had dozens
of pornographic videos, some of which involved him engaging in sexual acts with an
underage male.

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{4} 	Based on the observations of the deputies conducting the search and on
Defendant’s statements, a search warrant was issued permitting the seizure of drugs
and drug paraphernalia, as well as videos and photographs containing child
pornography from Defendant’s residence. Pursuant to the warrant, deputies seized
camcorders, videos, photographs, marijuana, and drug paraphernalia.
{5} 	A review of the seized evidence revealed ten VHS videos, twelve 8 mm videos,
four mini DVDs, and twenty-nine Polaroid photographs depicting a minor engaging
in sexually explicit conduct. Sheriff’s deputies conducted an investigation based on
the photographs found in Defendant’s home and Defendant’s statements, and were
able to identify the alleged victim (E.L.). E.L. was interviewed and disclosed sexual
abuse that had occurred for eleven years.
{6} 	Defendant was arrested and indicted by a grand jury on forty-four counts of
Criminal Sexual Penetration of a Child; and one count each of Sexual Exploitation of
a Child; Possession with Intent to Distribute Marijuana; Possession of Drug
Paraphernalia; and Possession of Cocaine. Defendant was also indicted by a federal
grand jury on two counts of Production of a Visual Depiction of a Minor Engaged in
Sexually Explicit Conduct. The state and federal cases against Defendant proceeded
concurrently.
B. 	Procedural Background

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{7} 	After Defendant was indicted in district court, he challenged the legality of the
warrantless search of his home and moved to suppress all evidence obtained as a result
of the search. After a hearing on Defendant’s motion, the district court found that the
search of Defendant’s home was illegal, and ordered suppression of all physical
evidence seized from his home and vehicle, all statements made by Defendant to law
enforcement agents, and the testimony of E.L.
{8} 	The State appealed the suppression order to this Court. On appeal, the State
argued that the warrantless search of Defendant’s home was not illegal. The State also
argued that even if the search was illegal, Defendant’s statements and E.L.’s testimony
were sufficiently attenuated from the search to purge the taint of the illegality, and
should not be suppressed. This Court proposed to affirm both the illegality of the
search and the suppression of the evidence.
{9} 	As to the suppression of E.L.’s testimony, we proposed to affirm because the
district court’s findings indicated that E.L. was identified and questioned based on
evidence and statements of Defendant that followed the illegal search, and because the
State did not explain how it proved to the district court that E.L. would have
independently contacted police, nor did the State describe an intervening event or
attenuation. The State did not oppose the proposed result, however it did request that
we clarify whether our affirmance would preclude E.L. from testifying in future

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proceedings. In our memorandum opinion affirming the suppression order, we
clarified that we were not deciding what effect, if any, the suppression order would
have on E.L.’s right to testify in any future proceeding. State v. Martinez, No. 31,242,
mem. op. (N.M. Ct. App. Mar. 28, 2012) (non-precedential).
{10} 	Meanwhile, Defendant pleaded guilty to the charges in the federal indictment.
In Defendant’s plea agreement with the United States, he admitted that E.L.
voluntarily disclosed details of the years of sexual abuse he suffered at the hand of
Defendant, and that E.L. was willing to testify about the abuse at trial. The State then
moved for reconsideration of the district court’s suppression of E.L.’s testimony. The
State argued to the district court that when determining whether evidence obtained as
the result of an illegal search is sufficiently attenuated from the illegality as to purge
the taint and render the testimony admissible, under United States v. Ceccolini, 435
U.S. 268 (1978), the live testimony is analyzed differently than other forms of
evidence. To support this new argument, the State offered new authority that was not
considered in the first appeal. The district court denied the State’s motion for
reconsideration. This appeal followed.
II. 	DISCUSSION
{11} 	On appeal, the State challenges the district court’s order denying its motion to
reconsider suppression of E.L.’s testimony, arguing that the district court erroneously

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focused solely on the question of whether E.L. would have independently come
forward to police, prior to the time police searched Defendant’s home. We agree with
the State’s argument.
{12} 	Defendant does not respond to the State’s arguments related to the suppression
of E.L.’s testimony. Instead, he argues that under the law of the case doctrine, this
Court’s prior affirmance of the suppression order, which included suppression of
E.L.’s testimony, is binding on the remainder of the proceedings in this case, and
precludes reconsideration.
A. 	The Law of the Case Doctrine Does Not Preclude Reconsideration of the
Suppression Order
{13} 	Generally, under the law of the case doctrine, “a decision by an appeals court
on an issue of law made in one stage of a lawsuit becomes binding on subsequent
[district] courts as well as subsequent appeals courts during the course of that
litigation.” State ex rel. King v. UU Bar Ranch Ltd. P’ship, 2009-NMSC-010, ¶ 21,
145 N.M. 769, 205 P.3d 816. However, “[a]pplication of this doctrine is a matter of
discretion and is not an inflexible rule of jurisdiction.” State v. House, 2001-NMCA-
011, ¶ 10, 130 N.M. 418, 25 P.3d 257.
{14} 	In House, the defendant appealed his DWI-related and reckless driving-related
convictions and the corresponding sentences. Id. ¶¶ 1, 5. Our Supreme Court affirmed
the convictions and remanded for re-sentencing. Id. ¶ 1. The defendant appealed again

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to this Court, presenting new arguments related to his sentence. Id. ¶¶ 1, 10. The state
objected, arguing that the law of the case doctrine foreclosed our ability to hear any
argument not made on the defendant’s first appeal. Id. ¶ 10. Finding the state’s
argument unpersuasive, we concluded:
[T]he [law of the case] doctrine traditionally applies only where a matter
has been specifically ruled upon in a prior and final appellate proceeding.
. . . Neither this Court, nor our Supreme Court, has passed upon any of
the issues specifically presented in this appeal, and while it would have
been preferable for [the d]efendant to have brought these claims in his
prior appeal, the doctrine of law of the case does not preclude our
review.
Id. (emphasis added) (citations omitted).
{15} 	Similarly, it could be argued here that the State could have and should have
made its Ceccolini argument the first time suppression was addressed. It is worth
noting that “the [law of the case] doctrine leaves considerable discretion to appellate
courts to interpret what, precisely, the law of the case is[.]” King, 2009-NMSC-010,
¶ 27. In its motion for reconsideration, the State presented the district court with a new
issue not specifically addressed by the previous sitting district court or this Court on
Defendant’s motion for suppression. We have considered the merits of the parties’
arguments within a motion for reconsideration, even where the motions were
supported by new evidence, new arguments, or new authority. See State v. Gamlen,

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2009-NMCA-073, ¶¶ 4-5, 146 N.M. 668, 213 P.3d 818 (permitting the defendant to
make new arguments on a motion to reconsider suppression).
{16} 	In the case before us now, the State first advanced its Ceccolini argument in its
motion to reconsider suppression. Defendant did not respond to this argument, rather,
he argued that the district court was bound by this Court’s affirmance in the first
appeal. At the hearing on the State’s motion for reconsideration, the district court
rejected Defendant’s assertion that it was bound by our affirmance. We conclude that
it 	was 	appropriate 	for 	the 	district 	court 	to 	consider 	the 	State’s 	motion 	for
reconsideration that was based on new argument and new authority.
B. 	State’s Motion to Reconsider Suppression
{17} 	On appeal, the State argues that the district court erred in focusing solely on
whether E.L. would have independently contacted police. The district court found that,
because the State could not prove that E.L. would have independently contacted
police, his testimony was not sufficiently attenuated from the illegal search as to make
it admissible. The district court also noted that E.L’s willingness to testify was
irrelevant. As a result of its erroneous focus, the district court never analyzed the
applicability of Ceccolini in this case.
{18} 	We have not yet deviated from federal precedent as it pertains to the attenuation
of illegally obtained evidence as an exception to the exclusionary rule. State v. Garcia,

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2009-NMSC-046, ¶¶ 14, 23, 147 N.M. 134, 217 P.3d 1032 (following the “fruit of the
poisonous tree” and attenuation doctrines set forth in Wong Sun v. United States, 371
U.S. 471, 488 (1963) and Brown v. Illinois, 422 U.S. 590, 603-04 (1975)); see also
State v. Murry, 2014-NMCA-021, ¶ 33, 318 P.3d 180 (citing Wong Sun, 371 U.S. at
488, for general suppression principles). This Court has not specifically considered
whether we will adopt the Ceccolini attenuation analysis of witness testimony, and we
decline to do so here. See City of Las Cruces v. El Paso Elec. Co., 1998-NMSC-006,
¶ 18, 124 N.M. 640, 954 P.2d 72 (“We avoid rendering advisory opinions.”). While
we are not deciding the applicability of Ceccolini, we are required to analyze it within
the context of the State’s argument in support its Motion for Reconsideration and
make the determination of whether there was substantial evidence to support the
district court’s decision.
{19} 	Motions to reconsider suppression in criminal cases involve mixed questions
of law and fact. See State v. Hicks, 2013-NMCA-056, ¶ 5, 300 P.3d 1183, cert. denied,
2013-NMCERT-004, 301 P.3d 858; State v. Eric K., 2010-NMCA-040, ¶ 14, 148
N.M. 469, 237 P.3d 771. Factual determinations by the district court are reviewed
“under a substantial evidence standard and legal questions [are reviewed] de novo.”
Hicks, 2013-NMCA-056, ¶ 5 (internal quotation marks and citation omitted).

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{20} 	In Ceccolini, the United States Supreme Court included a lengthy discussion
of the uniqueness of live witness testimony compared to inanimate evidentiary
objects, touching directly on the concerns presented:
Witnesses are not like guns or documents which remain hidden from
view until one turns over a sofa or opens a filing cabinet. Witnesses can,
and often do, come forward and offer evidence entirely of their own
volition. And evaluated properly, the degree of free will necessary to
dissipate the taint will very likely be found more often in the case of
live-witness testimony than other kinds of evidence. The time, place and
manner of the initial questioning of the witness may be such that any
statements are truly the product of detached reflection and a desire to be
cooperative on the part of the witness. And the illegality which led to the
discovery of the witness very often will not play any meaningful part in
the witness’ willingness to testify.
Ceccolini, 435 U.S. at 276-77. The Court went on to state that “[t]he fact that the name
of a potential witness is disclosed to police is of no evidentiary significance, per se,
since the living witness is an individual human personality whose attributes of will,
perception, memory and volition interact to determine what testimony he will give.”
Id. at 277.
{21} 	Given this distinction, the Court held that courts should be cautious to use the
exclusionary rule for the testimony of live witnesses, and admonished courts to apply
it with circumspection to determine its usefulness in any particular context. The Court
was particularly concerned with a situation in which the “exclusion would perpetually
disable a witness [who is not a putative defendant] from testifying about relevant and

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material facts, regardless of how unrelated such testimony might be to the purpose of
the originally illegal search or the evidence discovered thereby.” Id. Under such
circumstances, the Court held that “since the cost of excluding live-witness testimony
often will be greater, a closer, more direct link between the illegality and that kind of
testimony is required.” Id. at 278. Thus, the significance of the State’s request that this
Court clarify whether E.L. was precluded from testifying in future proceedings. {22}
Applying these principles to the facts of that case, the Court held that the
witness’s testimony, though causally related to the illegal search, had become
sufficiently attenuated because (1) the free will that the witness exhibited made it
more likely that she would eventually have come forth on her own, see id. at 276-77,
279; (2) the Supreme Court is less willing to exclude live-witness testimony than to
exclude inanimate documents or objects, id. at 277; (3) other illegally seized evidence
was not used in questioning the witness, id. at 279; (4) “[s]ubstantial periods of time
elapsed between the time of the illegal search and the initial contact with the witness,”
and “between [the contact with the witness] and the testimony at trial,” id.; and (5) it
did not appear that the officer conducted the illegal search with the intent of seeking
out evidence, id. at 280.
{23} 	We agree with the State that the district court’s focus was erroneous. Under
Ceccolini, the likelihood that a testifying witness will be discovered through

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independent, legal means is not determinative of attenuation, but rather is a function
of the witness’s willingness to testify. See id. at 276 (“The greater the willingness of
the witness to freely testify, the greater the likelihood that he or she will be discovered
by legal means and, concomitantly, the smaller the incentive to conduct an illegal
search to discover the witness.”). Here, the key considerations in determining
attenuation of E.L.’s testimony are: (1) whether E.L. will willingly testify against
Defendant; and (2) whether the purpose served by excluding E.L.’s testimony
outweighs the cost of forever precluding him from testifying against his abuser.
{24} 	The State had the opportunity to present relevant evidence at the hearing on the
motion for reconsideration in support of its argument of the application of Ceccolini
and specifically, E.L.’s willingness to testify, but failed to do so. State’s counsel
provided only information about E.L.’s alleged willingness to testify included as an
admission by Defendant, in Defendant’s federal plea agreement, that E.L. was
prepared to willingly testify about the abuse in federal court as detailed in E.L.’s
wife’s affidavit. See also State v. Cochran, 1991-NMCA-051, ¶ 8, 112 N.M. 190, 812
P.2d 1338 (noting that “argument of counsel is not evidence”).
{25} 	Defendant’s federal plea agreement was not relevant to show that because E.L.
was willing to testify in the federal proceeding he was therefore willing to testify in
the state proceeding. Substantial evidence is “such relevant evidence as a reasonable

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mind might accept as adequate to support a conclusion.” State v. Gonzales, 2010-
NMCA-023, ¶ 4, 147 N.M. 735, 228 P.3d 519 (alteration, internal quotations and
citations omitted). Rule 11-401 NMRA (2011) defines relevant evidence as “evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable.” The State failed to tender
relevant evidence to show E.L. was also willing to testify in the state court
proceedings so that the district court could consider even the first of the Ceccolini
factors. The State had the opportunity to present E.L.’s testimony, in person or by
affidavit, to show his willingness to testify, but chose not to do so. We conclude that
the district court appropriately denied the State’s motion for reconsideration.
{26} 	Based on the foregoing, we affirm the district court’s order denying the State’s
motion for reconsideration.
{27} 	IT IS SO ORDERED.
_______________________________
M. MONICA ZAMORA, Judge
WE CONCUR:
_________________________________
MICHAEL D. BUSTAMANTE, Judge

MICHAEL E. VIGIL, Judge
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