November 25, 2019- State of New Mexico v. Ysidro Robert Garcia, No. A-1-CA-36295

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
Opinion Number: Filed 11/25/2019 11:16 AM

Filing Date: NOVEMBER 25, 2019 A. we z= :
Mark Reynolds:

No. A-1-CA-36295

STATE OF NEW MEXICO,
Plaintiff-Appellant,

V.

YSIDRO ROBERT GARCIA,
Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Cindy Leos, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM

John Kloss, Assistant Attorney General
Albuquerque, NM

for Appellant

Bennett J. Baur, Chief Public Defender
C. David Henderson, Appellate Defender
Santa Fe, NM

for Appellee

OPINION
1 HANISEE, Chief Judge.
2 	{t} 	The State appeals from the district court's order granting Defendant Ysidro
3 Garcia's motion to reconsider a prior district court judge's denial of Defendant's
4 motions for mistrial. The State contends the district court erred in ordering a new
5 trial because (1) Defendant did not file his motion to reconsider within the post-
6 verdict time 	limit 	set forth 	by Rule 	5-614(C) NMRA; 	(2) the 	district 	court
7 misapprehended what occurred at trial; and (3) the State's witness referred to
8 Defendant's invocation of his Fifth Amendment right to counsel on only one
9 occasion, immediately after which the district court gave a curative instruction.
10 	Concluding Defendant's motion to reconsider was untimely, we reverse and remand
11 	for sentencing.
12 	I.
13 	{2}
BACKGROUND
Defendant was arrested on charges 1 of receiving or transferring a stolen
14 vehicle, in violation of NMSA 1978, Section 30-16D-4 (2009), and went to trial
15 	before a jury in September 2016. Before separately discussing the relevant post-trial
1
Defendant was also charged with possession of burglary tools under NMSA
1978, Section 30-16-5 (1963), driving while license is suspended or revoked under
NMSA 1978, Section 66-5-39 (2013, amended 2019), and possession of drug
paraphernalia under NMSA 1978, Section 30-31-25 (1980), but these charges were
dismissed on directed verdict.

1 proceedings, we first briefly review the portion of the trial proceedings on which
2 Defendant's motions were premised.
3 A. 	Trial
4 {3} 	At trial, the State elicited testimony from Albuquerque Police Department
5 Detective Joel Block about his interactions with Defendant at the police station
6 following his arrest. When asked by the prosecutor what Defendant told him in the
7 interview room at the police station, Detective Block said, "I did read him the advice
8 of rights. He said he did understand. He did sign the form and he wished to speak to
9 his attorney." Defense counsel promptly objected, asked to approach the bench, and
10 moved for a mistrial. Then, presiding Judge David N. Williams asked the prosecutor,
11 	"Why did you elicit that?" The prosecutor responded, "Just to see if there w[ ere] any
12 admissions 	from 	[D]efendant." 	Defense 	counsel 	argued that "there's 	been 	a
13 	comment on the fact that [Defendant] invoked his [Fit]th Amendment ... right to be
14 	silent[,]" 	and 	made 	the 	first 	motion 	for 	a mistrial. 	Judge 	Williams 	denied
15 	Defendant's motion and stated that, in order to cure any prejudice arising from
16 Detective Block's testimony, the court would instruct the jury that it was not to infer
17 Defendant's guilt from his stated wish to speak with an attorney. Judge Williams
18 then asked the prosecutor whether he knew Detective Block "was going to say
19 	[Defendant] asked for an attorney[,]" which the prosecutor denied. Judge Williams
2

1 found there to be no "deliberate misconduct" by the State; and then provided the
2 following curative instruction:
3 	Ladies and gentlemen, in this country, 	somebody that[ has been]
4 	arrested has an absolute right not to say anything to the police officers
5 	and has an absolute right to ask for an attorney if he or she wants one.
6 	You are not permitted, may not draw any inference at all about the
7 	testimony you heard that [Defendant] asked for an attorney.
8 {4} 	After giving the instruction, Judge Williams asked if each juror understood
9 the instruction and whether the jury could assure the court that it would refrain from
10 using that statement "in any way" 	when evaluating the 	evidence. 	The jurors
11 	responded affirmatively, and during the remainder of the trial, neither party referred
12 to Detective Block's testimony that Defendant asked for a lawyer while he was in
13 	custody.
14 {5} 	After the jury returned a guilty verdict and the district court dismissed the
15 jurors, Defendant renewed his earlier motion for a mistrial. The district court denied
16 the renewed motion.
17 B.
18 	{6}
Post-Trial Proceedings
On January 11, 2017, the district court entered la notice setting Defendant's
19 sentencing hearing. The following day, the case was reassigned from Judge Williams
20 to Judge Cindy Leos. On January 23, 201 7, more than four months after the trial
21 	ended, Defendant filed an opposed motion to reconsider the district court's previous
22 	denials of Defendant's initial and renewed motions for a mistrial, contending again
3

1 th;:1.t 	the 	State's 	elicitation 	of 	Detective 	Block's 	testimony 	constituted 	"an
2 impermissible comment on Defendant's silence." The State opposed the motion. At
3 the outset of a hearing on Defendant's motion in March 2017 Judge Leos stated that,
4 based on her review of the trial transcript, the question before the court was whether
5 a new trial was necessary due to Detective Block's testimony regarding Defendant's
6 wish to speak with an attorney. Judge Leos opined that the trial "was fundamentally
7 flawed," and that "[Defendant's] constitutional right to remain silent and for the jury
8 to not necessarily have any knowledge of that ... was impacted[,]" and concluded
9 that a new trial was required.
10 {7} 	During argument on Defendant's motion, the State contended that (1) the
11 	district court's curative instruction was 	sufficient to prevent any prejudice to
12 Defendant, and (2) Defendant's motion to reconsider was untimely, arguing that the
13 	timing of Defendant's motion suggested "improper forum shopping or [an] attempt
14 to circumvent the decision of Judge Williams[,r' and that the proper course of action
' 	.
15 	would be for Defendant to file an appeal with this Court. In response, Defendant
16 argued that because judgment had not yet been entered in the case, the district court
17 could reconsider any previous rulings in the case. Defendant also reiterated his
18 	underlying 	contention 	that, 	based 	on 	Detective 	Block's 	testimony 	regarding
19 Defendant's request for an attorney, the "jury was tainted and any decision [reached
20 thereafter] is questionable."
4

1 {8} 	Following argument, Judge Leos repeated her conclusion that the trial was
2 "fundamentally flawed," adding that, in her view, the curative instruction "made
3 things worse for [Defendant], not better." Finding that "the trial was flawed, [and
4 that 	Defendant's] 	right 	to 	a 	fair 	trial 	was 	impacted 	by 	[Detective 	Block's]
5 testimony[,]" Judge Leos granted Defendant's motion to reconsider and ordered a
6 new trial. The State now appeals.
7 II. 	DISCUSSION
8 {9} 	The State argues the district court erred in ordering a new trial for three
9 reasons: ( 1) the time limits under Rule 5-614(C) precluded a new trial in Defendant's
10 case; (2) Judge Leos misapprehended what took place at the trial presided over by
11 	Judge Williams; and (3) the misapprehensions led Judge Leos to erroneously find
12 prejudicial error had occurred at trial. After review of the record, we .conclude that
13 	Defendant's motion to reconsider was untimely, and we therefore need not address
14 the State's additional arguments.
15 	The District Court Erred in Granting a New Trial Because Defendant's Motion
16 Was Untimely
17 	{to} 	This case requires us to (1) examine whether Rule 5-614 applies to a motion
18 that seeks a new trial but is styled as a motion to reconsider; and (2) if so, whether
19 Defendant's motion was time-barred Rule 5-614(C).
20 	{11} 	"We review de novo questions 	of law concerning the interpretation 	of
21 	Supreme Court rules and the district court's application of the law to the facts." State
5

1 v. Foster, 2003-NMCA-099,, 6, 134 N.M. 224, 75 P.3d 824. We begin by observing
2 while a motion for reconsideration would not typically be controlled by Rule 5-614,
3 our appellate courts have held that when a motion's substance and effect is that of a
4 different motion than that which was filed, we treat the motion substantively and
5 procedurally based on the relief it seeks, an analysis that includes requirements for
6 timeliness. In State v. Baca, our Supreme Court rejected an attempt to characterize
7 the defendant's "motion for a premature termination of the trial for procedural
8 reasons" as a request for an acquittal, concluding that "substance rather than labels"
9 controls and that to conclude otherwise would mean a party "could simply misuse
10 merits terminology to mask the true nature" of the relief sought. 2015-NMSC-021,
11 	, 42, 352 P .3d 1151. Similarly, in Chapel v. Nevitt, this Court relied on "the language
12 	of the order and the relief that it sought" to determine whether an inaptly titled
13 	"motion to modify" should be considered under Rule 1-059(E) NMRA (governing
14 motions to alter, amend, or reconsider final judgment) or as a motion to reconsider
15 	filed under to NMSA 1978, Section 39-1-1 (1917). 2009-NMCA-Ol 7, , 	18, 145
16 N.M. 674, 203 P.3d 889. Given our similar past resolution of misnamed motions
17 seeking relief of a nature identified within and governed by a particular rule, we can
18 	conclude that when a motion's substance and effect is that of a motion for a new trial
19 and a new trial is unambiguously the relief sought, Rule 5-614, along with the
6

1 timeliness requirements set forth in Subsection (C) thereof, apply regardless of the
2 motion's title.
3 {12} 	We now apply Rule 5-614 to Defendant's motion. Rule 5-614(C) requires that
4 "[a] motion for a new trial based on [any grounds other than newly discovered
5 evidence] shall be made within ten (10) days after verdict or finding of guilty or
6 within such further time as the court may fix during the ten (10) day period." Where,
7 as here, "our state court rules closely track the language of their federal counterparts,
8 we have determined that federal construction of the federal rules is persuasive
9 authority for the construction of New Mexico rules." Albuquerque Redi-Mix, Inc. v.
10 Scottsdale Ins. Co., 2007-NMSC-051, 19, 142 N.M. 527, 168 P.3d 99. Rule 5-614
11 	was based on Rule 33 of the Federal Rule of Criminal Procedure and closely tracks
12 the language of its federal counterpart. See State v. Lucero, 2001-NMSC-024, 1 8,
13 	130 N.M. 676, 30 P.3d 365 ("In promulgating Rule 5-614, we derived the time
14 requirement in [S]ubsection [(C)] of the rule from Rule 33 of the Federal Rules of
15 	Criminal Procedure."). "The time requirement for the filing of a motion for new trial
16 	in Rule 5-614(C) is nearly identical to the requirement in Rule 33 except that,
17 compared to our ten-day filing requirement, the federal rule provides only seven
18 	days to file the motion after verdict or finding of guilty." Lucero, 2001-NMSC-024,
19 1 8 (internal quotation marks omitted). Turning then to federal precedent, we agree
20 with the Tenth Circuit's holding that a defendant's motion for reconsideration, filed
7

1 twenty-one months after denial, was not timely because under Federal Rule of
2 Criminal Procedure 33, "a motion to reconsider the denial of a ... new trial ... is
3 timely if filed within ten days of the entry of judgment" or order. United States v.
4 Miller, 869 F.2d 1418, 1420-21 (10th Cir. 1989).
5 {13} 	In this case, after Judge Williams' post-verdict denial ofDefendant's renewed
6 motion for mistrial, Defendant filed his motion for reconsideration more than four
7 months after the jury trial and, notably, only eleven days after the district court filed
8 a notice reassigning the case to Judge Leos. Defendant's motion for reconsideration
9 argued in part that the district court has inherent power to reconsider the denial of
10 Defendant's initial and renewed motions for mistrial as a modification of an
11 	interlocutory order prior to final judgment. But the goal of the motion was crystal
12 clear: it claimed "that the only remedy under the circumstances is a mistrial[,]" a
13 	ruling from which a new trial inherently flows. Although district courts are free to
14 modify their interlocutory orders at any time before final judgment, 	State 	v.
15 	Suskiewich, 2014-NMSC-040,, 11, 339 P.3d 614; Sims v. Sims, 1996-NMSC-078,
16 , 59, 122 N.M. 618, 930 P.2d 153, they may not do so contrary to the time limits in
17 Rule 5-614(C), which restricts the authority of district courts for good reasons.
18 	Among those is finality.2 As the Eleventh Circuit has recognized, "To permit the
2Although an oral ruling is generally not considered to be a final judgment,
State v. Vaughn, 2005-NMCA-076,, 24, 137 N.M. 674, 114 P.3d 354, oral rulings
on motions for mistrial present an exception to the general rule and are considered
8

1 unlimited renewal or reconsideration of fully decided motions [for new trial] would
2 needlessly tie up judicial resources and seriously delay the final disposition of cases. .
3 Doing so would undermine both the language and purpose of the [r]ules." United
4 States v. Gupta, 363 F.3d 1169, 1174 (11th Cir. 2004). In addition, the United States
5 Supreme Court has long emphasized the significance of the principle of recency,
6 explaining that "as time passes, the peculiar ability which the trial judge has to pass
7 on the fairness of the trial is dissipated," and "[i]t is in the interest of justice that a
8 decision on the propriety of a trial be reached as· soon after it has ended as is
9 possible[.]" United States v. Smith, 331 U.S. 469, 475-76 (1947).
10 	{14} 	Here, during the ten days in which Defendant could have renewed his motion
11 	or moved to extend the ten-day time period under Rule 5-614(C), Defendant did not
12 do so. As a consequence, any subsequent motion seeking a new trial on the basis of
13 	Detective Block's testimony was untimely and therefore barred. See United States
14 v. Bramlett, 116 F.3d 1403, 1405-06 (11th Cir._ 1997) (explaining that a renewed
15 	motion for a new trial, when made outside of the post-verdict seven-day period and
16 beyond any extension granted within that seven-day period, is barred under Rule
17 33); United States v. Matthews, 256 F. Supp. 2d 202,204 (S.D.N.Y. 2003) (denying
final. See State v. Reyes-Arreola, 1999-NMCA-086, 1 10, 127 N.M. 528, 984 P.2d
775 (concluding that oral declarations of mistrial are binding and are not subject to
change unlike other oral decisions by the district court).
9

1 appellant's motion for reconsideration because it was filed outside of the post-
2 verdict seven-day time period under Rule 33 and was therefore untimely).
3 	{15} 	Judge 	Leos' 	subsequent 	order 	granting 	Defendant's 	motion 	for
4 reconsideration and request for mistrial was an erroneous order granting an untimely
5 motion for a new trial, not a modification of an interlocutory order. We reiterate that
6 when the substance of such a motion is 'that of a motion for a new trial, and a new
7 trial is unambiguously the relief sought, the motion must be reviewed as a motion
8 for a new trial-regardless of whether a party uses some other nomenclature-and .
9 must be filed in conformity with the timeliness requirements of Rule 5-614(C).
10 III. 	CONCLUSION
11 	{16} 	For the aforementioned reasons, we reverse the district court's order granting
12 Defendant a new trial and remand for resentencing. Our opinion does not foreclose
13 	Defendant from appealing the denial of his motion for new trial after the district
14 court enters a final judgment.
15 	{17}
16
17
IT IS SO ORDERED.
J. MILES HANISEE, Chief Judge
10

1
WE CONCUR:
2
tonic-
3 M. MONICA ZAMORA, Judge
4
5
ZACHARY A TVES, Judge
:-
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