October 23, 2018- State of New Mexico v. Austin Verret, No. A-1-CA-36336

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

10
1]

12
13
14
15
16
17
18

19

—

Opinion Number: Filed 10/23/2018 11:09 AN
Filing Date: October 23, 2018 ne [>
Mark Reynolds

No. A-1-CA-36336
STATE OF NEW MEXICO,

Plaintiff-Appellee,
V.
AUSTIN VERRET,

Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico

Fernando R. Macias, District Judge

Hector H. Balderas, Attorney General
Eran Sharon, Assistant Attorney General
Santa Fe, NM

for Appellee

Cardenas Law Firm, LLC
Christopher K.P. Cardenas
Las Cruces, NM

for Appellant

1 	OPINION
2 GALLEGOS, Judge.
3 {I} 	Defendant Austin Verret filed a motion in Dofia Ana County Magistrate Court
4 to exclude the arresting officer from testifying at his trial for aggravated driving
5 while 	under 	the 	influence 	of intoxicating 	liquor 	or 	drugs 	(DWI), 	based 	on
6 Defendant's inability to secure a pretrial witness interview with the officer. The .
7 magistrate court granted the motion and excluded the officer from testifying. In
8 response, the State filed a nolle prosequi in magistrate court and refiled Defendant's
9 case in district court pursuant to State v. Heinsen, 2005-NMSC-035, 138 N.M. 441,
10 	121 	P.3d 	1040. 	Defendant then requested that the 	district 	court conduct an
11 	independent review of his pretrial motion to exclude the arresting officer in
12 accordance with City of Farmington v. Pinon-Garcia, 2013-NMSC-046, 311 P.3d
13 	446. The district court, noting that Pinon-Garcia involved an appeal from an order
14 	of dismissal, concluded that the requirement for an independent review of the pretrial
15 	motion filed in the lower court does not apply to a case where the state refiles the
16 charges in district court. Instead, the district court decided the motion anew based
17 on the facts as they existed in the district court. For the reasons that follow, we
18 conclude that the district court erred in concluding that Pinon-Garcia does not apply
19 to a Heinsen refiling. Consequently, we reverse and remand to the district court for

1 an independent determination of the motion to exclude as filed in the magistrate
2 court.
3 BACKGROUND
4 	{2} 	Defendant was charged with one count of aggravated DWI in magistrate court.
5 Prior to trial, Defendant repeatedly requested a witness interview with the arresting
6 officer, Brad Lunsford, but to no avail. At one point, an interview with Officer
7 Lunsford was scheduled, but the officer cancelled on the day of the· interview.
8 	{3} 	Based 	on 	the 	multiple 	failed 	attempts 	to 	interview 	Officer 	Lunsford,
9 Defendant filed 	a motion to 	exclude the 	officer from testifying 	at trial. 	The
10 magistrate court reserved its ruling on the motion until the day jury selection was set
11 	to occur. However, the magistrate court did enter an order requiring the State to
12 provide the witness interview with Officer Lunsford by the day of jury selection.
13 	When that day came, Defendant still had not had the opportunity to interview Officer
14 Lunsford. Defen~ant renewed his motion to exclude the officer from testifying, and
15 	the magistrate court granted it.
-16 	{4} 	Instead of proceeding to trial, the State filed a nolle prosequi in magistrate
17 court and refiled Defendant's case in district court. The refiled complaint indicated
18 that "[u]nder Rule 6-506[(A)] NMRA, and pursuant to ... Heinsen ... the State is
19 exercising its discretion to have this matter heard in a court of record to remedy an
20 order of suppression." In response, Defendant filed a motion in district court to
2

1 dismiss. Then, after the district court denied the. motion, Defendant filed a motiorr
2 for reconsideration. In his motion for reconsideration, Defendant argued that the
3 district court was required, pursuant to Pinon-Garcia, 2013-NMSC-046, to make a
4 de novo determination of whether the magistrate court's exclusion order-entered
5 as a discovery sanction-was correctly issued based on the merits of the motion as
6 they existed at the time the magistrate court entered the order. See id. 1 1 (concluding
7 that on appeal, "the district court must make an independent determination of the
8 merits" 	of a pretrial motion filed in a court not of record). The district court
9 concluded 	in 	its 	order 	denying 	Defendant's 	motion 	for 	reconsideration 	that .
10 "[b]ecause this case is not an appeal but is a refiling, the [d]istrict [c]ourt's role is
11 	not to pass upon the merits of the lower court's decision but to determine whether
12 the motion, raised and filed in [d]istrict [c]ourt, is meritorious now." The district
13 	court then denied the motion because Defendant had evidently interviewed Officer
14 Lunsford following the refiling in district court. Defendant subsequently entered a
15 	conditional plea agreement in which he pied no contest to a lesser DWI charge and
16 reserved the right to appeal the district court's denial of his motion to reconsider.
17 DISCUSSION
18 {5} 	Defendant argues that the district court erred by failing to consider the events
19 as they unfolded in magistrate court in making its decision on his motion for
20 reconsideration, as required by Pinon-Garcia. See id. 121 (holding that "the district
3

1 court should have made an independent determination regarding the validity of the
2 [lower] court's order of dismissal based on the record on appeal and the arguments
3 	of counsel at the district court level"). For its part, the district court predicated its
4 ruling on its conclusion that Pinon-Garcia, which involved an appeal from an order
5 of dismissal, does not apply to a case where the state refiles the charges in district
6 court. Defendant, however, points out that the State refiled the criminal complaint
7 in district court, pursuant to Heinsen, 2005-NMSC-035, in order to receive review
8 of the magistrate court's exclusion ruling. See id. ,r 1 (recognizing that "the [s]tate
9 may obtain judicial review of ... a suppression order by filing a nolle prosequi to
10 dismiss some or all of the charges in a magistrate court after the suppression order
11 	is entered and refiling in the district court for a trial de novo"). 1 The question for this
12 Court, 	then, 	is 	whether 	the 	Piifon-Garcia 	requirement 	for 	an 	independent
13 	determination of the merits of a pretrial motion filed in the lower court applies in the
14 context of a district court refiling under Heinsen.
1 Although Heinsen involved an order of suppression, both Defendant and the
State treat a Hein.r,en refiling-a nolle prosequi filed in the magistrate court followed
by a refiling of the charges in the district court-as the appropriate vehicle for the
State to seek review of the magistrate court's order excluding witness testimony as
a discovery sanction for violation of Rule 6-504(D) NMRA. In the absence of
briefing otherwise, we assume, but do not decide, that this is con-ect for purposes of
resolving this appeal.
4

1 I. 	Standard of Review
2 	{6} 	"A court's jurisdiction derives from a statute or constitutional provision."
3 State v. Rudy B., 2010-NMSC-045, ~ 14, 149 N.M. 22,243 P.3d 726. Likewise, the,
4 right to appeal is a matter of substantive law created by constitution or statute. State
5 v. Armijo, 2016-NMSC-021, ~ 19,375 P.3d 415. "We review issues of statutory and
6 constitutional interpretation de novo." Id. (internal quotation marks and citation
7 omitted). We also review de novo the district court's application of the law to the
, 8 facts of the case. State v. Foster, 2003-NMCA-099, ~ 6, 134 N.M. 224, 75 P.3d 824.
9 II.
10
11 	{7}
District Court Review of a Potentially Dispositive Discovery Sanction
Entered in Magistrate Court upon Refiling Pursuant to Heinsen
Our New Mexico Constitution permits appeals from inferior courts to the
12 district court. N.M. Const. art. VI, § 27. The relevant provision indicates that
13 	"[a]ppeals shall be allowed in all cases from the final judgments and decisions of the
14 	... inferior courts to the district courts, and in all such appeals, trial shall be had de
15 	novo unless otherwise provided by law." Id.; see NMSA 1978, § 39-3-1 (1955) ("All
16 appeals from inferior tribunals to the district courts shall be tried anew in said courts
17 on their merits, as if no trial had been had below, except as otherwise provided by
18 	law."); Foster, 2003-NMCA-099, ~ 9 (stating that because magistrate courts are not
19 courts of record, an appeal from a magistrate court is de novo ).
20 	{8} 	In light of the constitutional and statutory requirements for a trial de novo in
21 	district court following an appeal from an inferior non-record court, our Supreme
5

1 Court in Pinon-Garcia, 2013-NMSC-046, took on the question of how a district
2 court must treat an appeal of a lower court's order on a dispositive motion. See id.
3 il 17 ("The limited question we address in this case is the appropriate review in
4 district comt of a municipal comt's pretrial ruling."). In Pinon-Garcia, the defendant
5 was charged in municipal court with three traffic offenses, including DWI. Id. ,I,I 4-
6 	5. On the day of the trial, t~e arresting officer did not appear, and the defendant
7 moved to dismiss all charges, which the municipal comt granted. Id. ,I 5. The City
8 ofFarmington appealed the dismissal of the DWI charge to the district court. Id. The
9 defendant then filed a motion in district court to dismiss the appeal, arguing that the
10 municipal court's dismissal should be reviewed on appeal for an abuse of discretion.
11 	Id. The district court determined that it was precluded from reviewing the municipal
12 comt's order at all and instead held a trial de novo. Jd. ilil 5-6. The an-esting officer
13 	appeared at the trial in the district court, and the defendant was convicted of DWI.
14 Id. ,I 6.
15 	{9} 	Our Supreme Court concluded that the district court was correct in not
16 reviewing the order of the municipal comt for abuse of discretion. See id. ,I 19 ("The
17 district court does not consider whether the lower court abused its discretion[.]").
18 Our Supreme Court clarified, however, that the district court should have instead
19 made an independent detennination of the merits of the pretrial motion "based on
20 the record on appeal and the arguments of counsel at the district court level." Id.
6

1 ,r 21; see id. ,r 19 (holding that the district court "must consider the merits of the
2 motion without regard to what the municipal court decided").
3 	{IO} 	Our Supreme Court reasoned that "[i]f district courts are not pennitted to
4 review a lower court's grant or denial of potentially dispositive pretrial motions on
5 appeal, the power of lower comis to grant relief when constitutional safeguards and
6 procedural rules, such as speedy trial, double jeopardy, or discovery rules, are
7 violated would be meaningless." Id. ,r 2. In other words, a party in an inferior court
8 who is granted a dispositive order as a remedy for a constitutional or procedural
9 violation "would effectively be deprived of the safeguards of the United States and
10 New Mexico Constitutions and our procedural rules· if a district court's de novo
11 	review of the lower court's ruling are bypassed in favor of a trial de novo on the
12 	underlying complaint." Id. Our Supreme Comi added that this would lead to inferior
13 	courts arbitrarily disregarding "enforcement of procedural rules and constitutional
14 protections" because what the inferior comis did would not be reviewed. Id. ,r 13.
15 	Ultimately, our Supreme Court remanded the case and instructed the district comi
16 to resolve whether to dismiss the case because the arresting officer failed to show up
17 to the trial before the municipal comi or whether it would consider alternatives to
18 dismissal, "while balancing the need to vindicate the authority of the municipal court
19 and protecting the parties' rights under our rules and the United States and New
20 Mexico Constitutions." Id. ,r 21.
7

1 {11} 	In the present case, Defendant requested-via his motion to reconsider-that
2 the district court conduct an independent review of his motion to exclude Officer
3 Lunsford, as filed in the magistrate court, citing the above-described requirement in
4 Pinon-Garcia. The district court instead decided the motion for reconsideration
5 anew, 	based 	upon 	the 	facts 	as 	they 	existed 	in 	the 	district court, 	essentially
6 determining that Pinon-Garcia applies to direct appeals but not to the refiling of
7 charges.
8 {12} 	While the district court found this distinction-appeal versus refiling-to be
9 pivotal, we can see no meaningful difference between either method of obtaining
10 review of a dispositive motion by the district court. See Heinsen, 2005-NMSC-035,
11 	, 	1 (recognizing that "the [s]tate may obtain judicial review of ... a suppression
12 order by filing a nolle prosequi to dismiss some or all of the charges in a magistrate
13 	court after the suppression order is entered and refiling in the district court for a trial
14 de novo"); see also City of Santa Fe v. Marquez, 2012-NMSC-031,, 23,285 P.3d
15 	637 (recognizing aHeinsen refiling as "the specific procedure by which the state can
16 appeal a suppression ruling in magistrate court in order to avoid a situation ... in
17 which the defendant would be acquitted as the result of the suppression of evidence,
18 thus barring the ability of the state to appeal"). With respect to our Supreme Court's
19 recognition that "[i]f district courts are not pennitted to review a lower court's grant
20 or denial of potentially dispositive pretrial motions on appeal, the power of lower
8

1 courts. to grant relief when constituti9nal safeguards and procedural rules, such as
2 speedy 	trial, 	double ·jeopardy, 	or 	discovery 	rules, 	are 	violated 	would 	be
3 meaningless[,]" Pifwn-Garcia, 2013-NMSC-046, ~ 2, we can see·no difference
4 between an appeal from a ruling on a dispositive pretrial motion and a Heinsen
5 refiling seeking the same type of review.
6 	{13} 	The State does not argue that its refiling was anything other than an attempt
7 under Heinsen to have the magistrate court's exclusion ruling reviewed by the
8 district court. In fact, the State has continuously asserted, both below and on appeal,
9 that it refiled the charges in district court in order "to have this matter heard in a
10 court of record to remedy an order of suppression." Although not a traditional appeal,
11 	the refiling method utilized by the State is effectively the equivalent of an appeal.
12 See Marquez, 2012-NMSC-031, ~ 23 ("Heinsen ... reflect[s] [our Supreme] Court's
13 	evident concern that suppression orders generally should not be immune from
14 appellate review.").
15 	{14} 	Because there is no meaningful distinction between an appeal and a Heinsen
16 refiling when either method is utilized to obtain review of the inferior court's ruling
17 on a potentially dispositive pretrial motion, we conclude that the district court should
18 have conducted an independent review of the pretrial motion to exclude filed in
19 magistrate comi. From our review of the State's argument on appeal, it does not
20 appear that the State makes any contention to the contrary. Rather, the State argues
9

1 that the district co_urt did in fact conduct a de novo review of the motion. However,
2 as noted earlier, the district court decided Defendant's motion for reconsideration
3 	~ased upon the facts as they existed in the district comi, not as they were before the
4 magistrate court. This method of review is not in line with Pinon-Garc_ia. See 2013-
5 NMSC-046, 'if 21 (holding that "the district court should have made an independent
6 determination regarding the validity of the [lower] court's order of dismissal based
7 on the record on appeal and the arguments of counsel at the district court level");
8 Foster, 	2003-NMCA-099, 	'if 	19 (stating that a district court does not "accord
9 deference to the magistrate court's ruling; instead, the district court makes an
10 independent judgment based on the record before it" as to whether the magistrate
11 	comi properly granted the motion); 	cf 	Pinon-Garcia, 	2013-NMSC-046, 	'if 	12
12 ("Simply because municipal comis are not comis of record does not mean that the
13 	entire history of a case in municipal court is disregarded."). In fact, we recently held
14 in State 	v. 	Vanderdussen, 	2018-NMCA-041, 	420 P.3d 	609-albeit with little
15 	analysis on this point-that Pinon-Garcia applies when the State refiles charges
16 following a mistrial in magistrate comi, and we explained that that the district court
17 "was bound by events that transpired in magistrate court and therefore was required
18 to base its independent judgment on the limited record brought before it and the
19 arguments made by counsel in district court." Vanderdussen, 2018-NMCA-041,·'if 2.
10

1 We conclude that the district comi in this case should have reviewed the magistrate
2 court's exclusion ruling in the same manner.
3 	{15} 	Last, we note that both parties have made extensive arguments on appeal as
4 to the correctness of the magistrate court's exclusion order. Given our conclusion
5 that the district comi erred in its review of Defendant's motion to exclude, we need
6 not reach those arguments. Instead, we reverse the ruling of the district court and
7 remand with an instruction that the district comi determine if it would have excluded
8 Officer Lunsford based on the events in the magistrate comi or if it would consider
9 alternatives to exclusion. As in Pinon-Garcia, the district court should balance the
10 need to vindicate the authority of the magistrate court and the protection of the
11 	parties' rights under our rules and the United States and New Mexico Constitutions.
12 See 2013-NMSC-046, if 21.
13 	CONCLUSION
14 	{16} 	For these reasons, we reverse and remand to the district court for proceedings
15 	consistent with this opinion.
16 {17} 	IT IS SO ORDERED.
:~ 	~~L~udge
11

—

WE CONCUR:

MW

J. MILES HANISEE, Judge

PAULL.

EMIL J.AIEHNE, Judge

12