August 14, 2012 – State of New Mexico v. David Castillo, No. 31,269

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: August 14, 2012
NO. 31, 269
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
DAVID CASTILLO,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Robert M. Schwartz, District Judge
Gary K. King, Attorney General
Olga Serafimova, Assistant Attorney General
Santa Fe, NM
for Appellee
Streubel Kochersberger Mortimer, LLC
Donald F. Kochersberger III
Albuquerque, NM
for Appellant

OPINION
HANISEE, Judge.
{1} 	Defendant David Castillo was sentenced following an agreement with the State
in which he pleaded no contest to criminal sexual penetration in the second degree.
Defendant’s ensuing nine-year incarcerative sentence was suspended, and he was
placed on supervised probation for a total of five years, commencing on December 16,
2005. As a special condition of his probation, Defendant was required to “enter and
successfully complete a sex offender specific therapy to include polygraph testing as
deemed necessary by the therapist.” In April 2010, the State filed a motion to revoke
Defendant’s probation for failure to successfully complete a sex offender treatment
program. A probation revocation hearing was held, and Defendant’s probation was
revoked on December 14, 2010, a single day prior to its scheduled completion.
{2} 	On appeal, Defendant argues that his right to confrontation was violated when
the district court allowed the head of Forensic Therapy Service, the sex offender
treatment center at which Defendant was a patient, to testify about the results of his
polygraph examination—rather than requiring that the State call the individual who
actually administered the polygraph test. Based on our New Mexico Supreme Court’s
opinion in 	State v. Guthrie, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904,
Defendant’s claim of error requires this Court to consider “the need for, and utility of,
confrontation with respect to the truth-finding process and in light of the particular

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case at hand, including the specific charge pressed against the probationer.” Id. ¶ 43.
Having taken this standard into consideration, we conclude that Defendant’s
Fourteenth Amendment right to due process was violated by the district court’s
allowance of testimony regarding Defendant’s polygraph results by someone other
than the person who actually administered and interpreted the polygraph test.
Accordingly, we reverse.
BACKGROUND
{3} 	Prior to the probation revocation hearing, Defendant filed a motion in limine
or, in the alternative, a motion for continuance. In it, Defendant primarily sought to
exclude any testimony regarding the results of his polygraph test from a witness other
than Ralph Trotter, who administered Defendant’s polygraph test. Defendant argued
that he possessed a due process right to confront the witnesses against him even in the
context of a probation revocation proceeding, and absent a showing that there was
good cause for not producing Mr. Trotter, the State should be barred from proceeding
on the petition to revoke if it planned to present evidence regarding the polygraph.
Defendant specifically asserted that absent Mr. Trotter’s testimony and availability for
cross-examination, Defendant would be unable to test Mr. Trotter’s credentials and
the manner in which the purportedly failed polygraph test was effectuated, and thus
the district court lacked a constitutionally adequate basis to conclude that the asserted

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polygraph results were reliable. Alternatively, Defendant requested an extension of
time to permit his chosen expert polygraph examiner the opportunity to review the
materials related to the polygraph test and provide testimony regarding his own
independent conclusions.
{4} 	At the hearing, Defendant maintained that the polygraph results were central to
proving the existence of any probation violation. 	The State countered that the
probation violation was not based exclusively on an allegation that Defendant failed
his polygraph, but on the broader allegation that Defendant had “failed to fully
cooperate and complete the sex offender treatment.” The State added that Therese
Duran, the supervisor of Forensic Therapy Service, could competently testify
regarding “the problems with the polygraphs, [that] they changed the course of
treatment and still failed, because [D]efendant refused to engage.” Defendant insisted
that the core of Ms. Duran’s testimony would be as follows: “If the person is not
admitting that they did the offense conduct, and the polygraph tests indicate that they
are lying about that, then they consider the person to be noncompliant with the
therapy.” Thus, while Defendant argued that the polygraph evidence was central to
the proof of the probation violation, the State argued that evidence of the polygraph
was not actually necessary to prove the violation. The district court took the motion
in limine under advisement pending Ms. Duran’s testimony.

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{5} 	Ms. Duran testified that she supervised Defendant’s sex offender treatment and
made the ultimate decision to terminate him from the program in late March 2010,
roughly six months prior to Defendant’s completion of his five-year term of probation.
She discussed the two distinct ways polygraphs were used by Forensic Therapy
Service as part of the sex offender treatment program. Maintenance polygraphs were
used to ensure compliance with the terms of probation—such as the prohibition
against being within the specified vicinity of children. 	Ms. Duran testified that
Defendant had passed all of his maintenance polygraph exams. 	Polygraph exams
were additionally conducted regarding the sexual offenses with which the client was
charged in order to determine the best course of treatment. According to Ms. Duran’s
testimony, Forensic Therapy Service sought to address all charges initially brought
against the client (not only those to which the client pleaded or was convicted of), and
if there were discrepancies between those charges and the client’s explanation of
events, Forensic Therapy Service relied on polygraphs to resolve the incongruence.
{6} 	According to Ms. Duran, based on Defendant’s polygraph results, he was
considered to be in “denial” and was placed on a different treatment path aimed at
achieving accountability for all conduct with which he was originally charged. Ms.
Duran did not provide any testimony as to the manners in which Defendant’s

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polygraph test was conducted or its results were interpreted to reach the conclusion
that he was being deceptive. Instead, Ms. Duran summarily stated that Defendant was
placed in the “failed polygraph group” due to an indication of deception. She further
maintained that he “significantly failed all of the polygraphs related to his sexual
offense,” but that she did not “recall what the numbers were,” only that they were
“clearly deceptive.”
{7} 	Ms. Duran also discussed how Forensic Therapy Service utilized different
therapists and therapies in an effort to progress beyond Defendant’s “deception” to
achieve a therapeutically “accountable phase.” According to Ms. Duran, the difficulty
with Defendant’s progress was his lack of “[a]ny form of accountability[.]” Once his
initial polygraph tests showed deception, Ms. Duran testified that there was no way
for Defendant to have graduated from the program without admitting the underlying
offense. 	Ultimately, according to Ms. Duran, Defendant was released from the
program for noncompliance “[b]ecause he was not being accountable.”
{8} 	Following Ms. Duran’s testimony, Defendant reasserted his consistently argued
position:
In order for them to admit the testimony regarding the polygraph test
results, pass or fail, they need more than Ms. Duran coming up and
saying she got a report from someone. I don’t think the fact that she got
a report is a reliable indication of whether or not the polygraph test was
performed by somebody with the ability to perform it, that it was
performed with the proper procedures, that the results obtained were

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reliable, what the level of deception—if that’s even an important
indication for the polygraph tests—were. What we’re talking about is a
scientific test. And the only person who testified has just seen the yes-
or-no answer. . . .
I think Ms. Duran’s pretty clear. The reason [Defendant] was terminated
from the program was because he did not admit to the offense conduct.
And the reason [why] that is a problem is because they believe he failed
polygraph tests, indicating that he was lying about that. If he had passed
these polygraph tests, by Ms. Duran’s own admission, he would be out
of this program. He would be in a different one, maybe. But he would
have successfully completed their program.
The State reiterated that it was not the polygraph but Defendant’s continued denial
that justified revocation. 	The district court found that the polygraphs were “a
component of [Defendant’s] failure to finish the program” but that there were also
“other behaviors and actions that were interpreted by the staff [as D]efendant . . . not
engaging.” 	The district court therefore denied Defendant’s motion in limine.
Following supplemental testimony by Defendant’s probation officer, which did not
bear further on the issue of the polygraph, the district court revoked Defendant’s
probation. 	The court further elected not to continue the proceeding in order to
accommodate the alternative relief requested by Defendant—an opportunity to present
his own expert.

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DISCUSSION
{9} 	“Revocation of probation deprives an individual, not of the absolute liberty to
which every citizen is entitled, but only of the conditional liberty properly dependent
on observance of special [probation] restrictions.” Guthrie, 2011-NMSC-014, ¶ 10
(alteration in original) (quoting Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973))
(internal quotation marks omitted). 	“Because loss of probation is loss of only
conditional liberty, ‘the full panoply of rights due a defendant in a [criminal trial] do
[ ] not apply.’” Id. (alteration in original) (quoting Morrisey v. Brewer, 408 U.S. 471,
480 (1972)). Hence, “[t]he right protected in probation revocation[ cases] is not the
[S]ixth [A]mendment right to confrontation, guaranteed every accused in a criminal
trial, but rather the more generally worded right to due process of law secured by the
[F]ourteenth [A]mendment.” Guthrie, 2011-NMSC-014, ¶ 12. Due process includes
“the right to confront and cross-examine adverse witnesses (unless the hearing officer
specifically finds good cause for not allowing confrontation).” State v. Vigil, 97 N.M.
749, 751, 643 P.2d 618, 620 (Ct. App. 1982) (internal quotation marks omitted).
Whether Defendant’s due process right to confrontation was violated is a question of
law. We review questions of law de novo while deferring to the district court’s factual
findings. Guthrie, 2011-NMSC-014, ¶ 22.
{10} 	Our Supreme Court has directed the courts—when discharging their duty to

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find good cause for lack of confrontation—to consider “whether confrontation of the
witness is essential to the truth-finding process in the context of probation
revocation.” 	Id. ¶ 2. 	This entails considering whether the challenged hearsay
evidence “relate[s] to objective or subjective observations, assert[s] that a probationer
acted or failed to act as required, or support[s] facts that are central or ancillary to the
ultimate probation violation inquiry.” Id. ¶¶ 34, 37. 	Stated more specifically, our
courts are to consider whether: (1) “the assertion [is] central to the reasons for
revocation[] or . . . collateral,” (2) “the assertion [is] contested by the probationer, or
. . . the state [is] being asked to produce a witness to establish something that is
essentially uncontroverted,” and (3) the assertion is “inherently reliable.” Id. ¶¶ 34,
36.
{11} 	Our Supreme Court presented the consideration of these factors as falling on
a sliding scale “with extremes at either end and much balancing and weighing of
competing interests in between.” 	Id. ¶ 40. 	On one end of the spectrum, Guthrie
provides that good cause for not requiring confrontation will most likely exist where
the state’s evidence is uncontested, corroborated by other reliable
evidence, and documented by a reliable source without a motive to
fabricate, or possibly situations where the evidence is about an objective
conclusion, a routine recording, or a negative fact, making the demeanor
and credibility of the witness less relevant to the truth-finding process.
Id. 	On the other end of the spectrum, Guthrie provides that good cause will most

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likely not exist where
evidence is contested by the defendant, unsupported or contradicted, and
its 	source 	has 	a 	motive 	to 	fabricate; 	it 	is 	about 	a 	subjective,
judgment-based 	observation 	that 	is 	subject 	to 	inference 	and
interpretation, and makes a conclusion that is central to the necessary
proof that the defendant violated probation.
Id. ¶ 41.
{12} 	We begin our consideration of the utility of confrontation under the particular
facts of this case by looking at the nature of the evidence presented. Defendant argues
that in contrast to the evidence challenged in Guthrie, the polygraph evidence here
was central and contested, as opposed to being merely objective, routine or
independently proven. In Guthrie, the defendant was placed on supervised probation
and agreed to attend a ninety-day residential treatment program as part of a plea
agreement. 	Id. ¶ 3. 	The State filed a motion to revoke probation based on the
defendant’s failure to complete the program. 	Id. ¶ 4. 	At the probation revocation
hearing, the defendant’s probation officer did not testify; rather, the probation
officer’s supervisor testified and referred to documents contained in the defendant’s
probation file. 	Id. ¶¶ 4-6. 	Based on the supervisor’s testimony, the district court
revoked the defendant’s probation. In affirming the revocation, our Supreme Court
relied on the fact that the defendant did not contest the allegation that he failed to
complete the treatment program and that the defendant’s non-compliance was “an

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objective, negative, and rather routine fact” that “was easily and reliably established
to a reasonable degree of certainty by a written statement from the treatment center.”
Id. ¶ 46. 	In addition, our Supreme Court noted that there was little that could be
gained by testimony from a direct employee of the treatment center under the facts of
that case, and that the district court had independently corroborated the State’s
testimony by taking judicial notice that it would have been factually impossible for
the defendant to have completed the treatment as required, given the time and place
of the defendant’s arrest. Id. ¶¶ 47-48.
{13} 	“[T]he procedural protections inherent in the truth-finding process, such as a
hearing or confrontation, are only necessary when the truth of the state’s allegation is
challenged.” 	Id. ¶ 35. 	Thus, in Guthrie, our Supreme Court considered to be
important the fact that the “[d]efendant never created any doubt in the truth of the
evidence offered by the State.” 	Id. ¶ 34. 	It further noted that many courts would
question the need for “a live witness to establish an evidentiary fact (failure to
complete) that is never challenged for its accuracy or its reliability.” Id. In contrast,
Defendant here emphatically challenged the reliability of the polygraph evidence in
his motion in limine, his arguments on the issue, and his secondary effort to attain a
continuance in order to present expert evidence rebutting the State’s polygraph
testimony.

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{14} 	In addition, Defendant demonstrated through cross-examination of the State’s
witnesses that the polygraph evidence was central to the State’s allegation that
Defendant had failed to complete his treatment program. 	Ms. Duran testified that
Defendant’s termination from the program was based upon his lack of accountability
for the conduct with which he was originally charged. 	According to Ms. Duran,
Defendant was only required to admit to the conduct with which he was first charged
because his polygraph indicated that his denial of it was deceptive. If, on the other
hand, Defendant’s polygraph had not indicated deception, no such admission would
have been required. Because the testimony at the probation revocation hearing clearly
indicates that Defendant’s ultimate failure to admit the offense conduct led to his
termination from the program, the polygraph evidence that established the unresolved
conflict was “central to the reasons for revocation.” Id.
{15} 	Furthermore, Defendant accurately points out that polygraph evidence is neither
objective nor routine. Instead, polygraph examiners are required to be licensed and
adhere to specific procedures in the administration and interpretation of polygraph
exams. 	Ms. 	Duran’s 	foundation-less 	testimony 	that 	Defendant’s 	polygraph
examination indicated deception therefore gives this Court pause. 	“Evidence
supporting subjective conclusions, which may require confrontation, includes sensory-
based or judgment-based determinations or interpretations[.]” 	Id. ¶ 38. 	The

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conclusion testified to by Ms. Duran in explaining why Defendant was terminated
from the sex offender treatment program was the direct product of Mr. Trotter’s
interpretation of the polygraph results and his judgment-based determination that the
results indicated deception. 	The State characterizes the evidence at issue as “the
straightforward fact of treatment completion.” 	However, the incompletion of
treatment in this instance is not premised on an objective fact as was the case in
Guthrie; rather, the genesis of Defendant’s failure to complete treatment was based
on the State’s evidentiary assertions and argument regarding the results of his
polygraph exam. 	See id. ¶¶ 8, 48 (noting that the defendant’s failure to complete
treatment was based on him not being present at the treatment facility). According to
the Guthrie analysis, such subjective conclusions weigh compellingly in favor of
requiring an opportunity for cross-examination. Id. ¶ 37 (citing Bailey v. State, 612
A.2d 288, 294 (Md. 1992) (“A second consideration may be whether the proffered
hearsay is an objective fact reported by the declarant or instead contains conclusions
which ought to be tested by cross-examination.”)).
{16} 	The State does not directly address Defendant’s argument that the evidence
was central, contested, and not objective or routine. Instead, the State contends that
evidence regarding the polygraph was not necessary to proving Defendant’s violation
of the conditions of his probation and that the burden to subpoena Mr. Trotter was on

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Defendant because the polygraph results were evidence of mitigation—in other words,
a reason Defendant was unable to complete the treatment rather than proof of a
violation of his probation. Despite the State’s contention that introduction of evidence
regarding the polygraph results was unnecessary to prove a violation of Defendant’s
conditions of probation, that is not the case before us. 	Rather, the State chose to
introduce the polygraph results through Ms. Duran, along with Defendant’s refusal to
admit all initially charged conduct, as well as the corresponding changes in
Defendant’s treatment and his ultimate termination from the program. In the context
of a probation revocation proceeding, we look to Guthrie to see if the evidence the
State has elected to present situationally triggers a right of confrontation. Based on
the centrality of the polygraph evidence in this circumstance, the subjective and
interpretative nature of it, and the fact that Defendant challenged its reliability, we
conclude that this case falls on the “no good cause” end of the spectrum established
in Guthrie. 	Id. ¶ 41. 	Contrary to the circumstances in Guthrie, the utility of
confrontation under these facts is evident.
CONCLUSION
{17} 	For the reasons stated above, we hold that Defendant’s Fourteenth Amendment
right to due process was violated by the district court’s decision to allow Ms. Duran
to testify exclusively regarding Defendant’s polygraph results. 	Accordingly, we

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reverse and remand for further proceedings.
{18} 	IT IS SO ORDERED.
J. MILES HANISEE, Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
LINDA M. VANZI, Judge