State v. Mascareno-Haidle

Office of the
Director New Mexico
Compilation
16:21:51 2022.08.02 Commission
'00'06-
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2022-NMSC-015

Filing Date: June 30, 2022

No. S-1-SC-38743

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

JESSE MASCARENO-HAIDLE,

Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Courtney B. Weaks, District Judge

Presiliano Raúl Torrez, District Attorney
James W. Grayson, Deputy District Attorney
Albuquerque, NM

for Petitioner

Bennett J. Baur, Chief Public Defender
Kimberly M. Chavez Cook, Appellate Defender
Noah Walker Gelb, Assistant Appellate Defender
Santa Fe, NM

for Respondent

OPINION

VIGIL, Justice.

{1} When one of our district court judges is asked to decide whether a person
charged with committing a felony will be jailed pending trial, that judge must predict
what that person’s future behavior will be if released. But “there is no way to absolutely
guarantee that any defendant released on pretrial conditions will not commit another
offense.” State v. Brown, 2014-NMSC-038, ¶ 54, 338 P.3d 1276. To reduce the margins
of error, this inexact, consequential task demands that the judge be given as much
information as possible prior to making a decision. State ex rel. Torrez v. Whitaker,
2018-NMSC-005, ¶ 103, 410 P.3d 201. This allows for an informed decision to be made
that not only protects the dignity and constitutional rights of the accused, but it also
protects society. See N.M. Const. art. II, § 13.

{2} Here, the State failed to meet its evidentiary burden to place Defendant, Jesse
Mascareno-Haidle, in pretrial detention. The State asks us to clarify the standard it must
meet in order for the district court to grant pretrial detention. Specifically, the State
challenges the requirement that it must prove that there are no release conditions that
will reasonably protect the safety of any other person or the community if Defendant
were released. Thus the State requests that it be allowed to present less, not more,
information to a judge attempting to predict what a person’s future behavior will be. We
decline the State’s request and adhere to our order issued after oral argument
upholding the Court of Appeals’ affirmance of the district court’s denial of pretrial
detention. Having failed to meet the burden or preserve the issue, the State cannot be
heard to complain. We write to explain our reasoning and rationale.

I. FACTUAL AND PROCEDURAL BACKGROUND

{3} On January 29, 2021, Detective J. Allred of the Albuquerque Police Department
filed a criminal complaint-arrest warrant which chronicled his efforts to investigate a
series of residential burglaries in Albuquerque. The affidavit recites the following.

{4} A homeowner reported that on October 3, 2020, at approximately 3:30 a.m., a
vehicle was stolen from his home using keys taken from inside the home while he and
his family were sleeping. The intruder gained entry through a window facing the
backyard, which was easily accessible from the street behind the home. A latent print
impression from the window was obtained, and police determined that it matched a
known fingerprint of Defendant. A second homeowner reported her home was
burglarized overnight while her family was sleeping inside on November 19, 2020.
There was no sign of forced entry. Entry was presumed to be from an unlocked back
door, which the departing intruder had left wide open. The home backs directly onto a
recreation trail and arroyo, granting easy access to that back door. One of the items
stolen was an Xbox with a unique serial number, and investigation disclosed that
Defendant sold that Xbox to a pawnshop on December 2, 2020. On the basis of the
evidence identifying Defendant in connection with these two incidents, Defendant was
charged with one count of residential burglary, one count of unlawful taking of a motor
vehicle, and one count of receiving/transferring stolen property (over $250, less than
$500).

{5} In January 2020, after investigating five other residential burglaries, Detective
Allred concluded he was investigating a serial burglary case with common features: the
burglaries occurred during the overnight hours while the occupants were sleeping, and
entry was gained through an open window or door in the back of the home which was
easily accessible by a main street or open space. Detective Allred began researching
databases and dispatch call records of home burglaries that he knew of and that were
reported as having occurred in the early morning hours. He discovered over eighty
separate burglaries having taken place in Albuquerque in the middle of the night while
the occupants were sleeping. In many of the cases, cars were stolen. Some
homeowners had videos showing two or three burglars, and in all of them (except one)
the burglars wore masks. Detective Allred also investigated six additional cases from
Los Lunas which he believed involved the same suspects. The remainder of Detective
Allred’s affidavit details both his investigation of seven specific burglaries with similar
patterns and his investigation of Defendant, who was eighteen at the time, and two of
his associates. The investigation also involved automobiles, stolen from burglarized
homes, which ended up being parked or abandoned near Defendant’s home.

{6} Defendant was arrested on January 29, 2021, the day the criminal complaint-
arrest warrant affidavit was filed. On the next day, the State filed a motion for pretrial
detention pursuant to Article II, Section 13 of the New Mexico Constitution and Rule 5-
409 NMRA. To support its motion, the State presented Detective Allred’s criminal
complaint-arrest warrant affidavit, the pretrial services public safety assessment (PSA)1
recommending that Defendant be released on his own recognizance, the results of a
criminal history search pertaining to Defendant, and the register of actions in the case.

{7} A hearing on the motion for pretrial detention was held on February 3, 2021. The
State rested its entire detention case on the foregoing documents. Noticeably lacking
was any testimony from Detective Allred and any argument that no conditions of release
could protect the community from Defendant if he were released. The district court
judge denied detention. The district court judge found “that the magnitude of the
allegations are inherently dangerous” but “that the State has failed to prove by clear and
convincing evidence that no release conditions will reasonably protect the safety of
another person or the community.” Defendant was ordered to be released subject to
conditions, including: pretrial services supervision and compliance with all of its
conditions, not to possess any firearms or dangerous weapons, not to return to the
location of any of the alleged crimes, not to consume alcohol, not to buy or sell or
consume or possess illegal drugs, to notify the court of any change of address, not to
leave Bernalillo County without prior permission of the court, to maintain weekly contact
with his attorney, and not to leave his residence between the hours of 6:00 p.m. and
8:00 a.m. without prior permission of the court. The order setting conditions of release
was filed on the day of the detention hearing, February 3, 2021.

{8} Two days later, the State filed a second criminal complaint-arrest warrant
affidavit signed by Detective Allred. These charges were based on facts that were also
alleged in the criminal complaint-arrest warrant affidavit describing Detective Allred’s
investigation of a residential burglary taking place on December 16, 2020, in which two
violins and a Lexus SUV were stolen while the occupants of the home slept. The

1The PSA, developed by Arnold Ventures, is a multi-factor risk assessment tool that measures a
defendant’s risk—if released prior to trial—of failing to appear for judicial proceedings and engaging in
new criminal activity or new violent criminal activity. See The University of New Mexico, Bernalillo Cnty.
Pub. Safety Assessment Validation Study, 2 (June 2021), https://isr.unm.edu/reports/2021/bernalillo-
county-public-safety-assessment-validation-study.pdf. The PSA’s evaluative factors range from a
defendant’s present age and the violent nature, if any, of the charged offenses, to various aspects of a
defendant’s prior convictions and failures to appear, if any. Id. at 7; id. at 10, 22 (finding, inter alia, the
PSA scores compiled in over 10,000 cases emanating from the risk assessment pilot program previously
approved by this Court for use in the Second Judicial District to be “good” predictive indicators of new
criminal activity and “fair” predictive indicators of new violent criminal activity).
charges were larceny (over $20,000), conspiracy to commit a second-degree felony,
residential burglary, unlawful taking of a motor vehicle, two counts of conspiracy to
commit a third- or fourth-degree felony, and contributing to the delinquency of a minor.

{9} The State filed a second motion for pretrial detention pursuant to Article II,
Section 13 of the New Mexico Constitution and Rule 5-409. As with the first motion, the
State supported its second motion with Detective Allred’s second criminal complaint-
arrest warrant affidavit, an updated pretrial services PSA that again recommended
Defendant’s release on his own recognizance, the results of a criminal history search,
and the register of actions in the case. An arrest warrant was issued, and on February
12, 2021, Defendant was arrested at his home—his required location under the existing
conditions of his release.

{10} At the hearing on its second motion for detention, which was held before a
different district court judge, the State presented testimony of Detective Allred. Detective
Allred disclosed that after the initial motion for detention was denied, he and the
prosecutor agreed they could move forward with certain charges “right away.” They
wanted to file new charges, so they could get another chance to obtain an order
detaining Defendant pretrial. Their concern, “based on the circumstances surrounding
the magnitude of these burglaries,” was that Defendant would reoffend if not in custody.

{11} When Defendant was originally arrested on January 29, 2021, he was
cooperative and gave Detective Allred a two-hour recorded statement. Based on his
notes at the time of the interview, Detective Allred estimated that Defendant admitted to
committing around twenty-eight specific burglaries. Defendant specifically admitted
committing the burglaries underlying the charges set forth in both of the pending
criminal complaints. Defendant also identified his two accomplices. Defendant said that
he committed the burglaries because, due to the COVID-19 pandemic, he was not able
to work to support his daughter. Defendant was clear that he targeted homes in well-to-
do neighborhoods or “rich houses,” where the people could afford to replace the things
that were stolen. Defendant was not able to remember some burglaries, and there were
others that he absolutely denied committing, including the Los Lunas burglaries.

{12} The sum of the burglaries Defendant admitted to committing, together with those
Detective Allred suspected Defendant of committing, was between seventy-five and
eighty in Albuquerque. Detective Allred added that a shotgun was found in a search of
Defendant’s home. In addition, the police found at the home of one of Defendant’s
accomplices a Glock handgun and the suppressor for an AR-15 (but not the AR-15
itself) that was stolen in one of the Los Lunas burglaries. Finally, the State presented
evidence that two years prior, Defendant, a juvenile at the time, was caught committing
a burglary with another juvenile.

{13} Defendant’s witness at the second detention hearing was Jessica Etoll, a
licensed master social worker for the Law Offices of the Public Defender. She had
scheduled an assessment with Defendant which did not take place due to his second
arrest, but she spoke with Defendant on the day of the second hearing. Defendant was
able and willing to work with her, and they came up with a plan for his release. The plan
was for Defendant to live with his mother and two younger siblings and to work with his
mother in an inventory collecting business. Ms. Etoll would also be assisting Defendant
in obtaining his GED. Defendant needed to be involved with his seventeen-month-old
child, so Ms. Etoll would not only be helping Defendant but she would also be helping
his family. She stressed that it was important for Defendant to meet with her in person
so she could continue with a needs assessment.

{14} The district court then heard arguments from both sides. The State began its
argument by reciting its evidentiary burden as mandated by Article II, Section 13 of the
New Mexico Constitution: “So the State is arguing for pretrial detention, that [Defendant]
is a danger to the community and that there are no release conditions that will
reasonably protect the safety of the community or any other person.” This passing,
generic reference to “release conditions” was the only time the State mentioned the
subject during the entire hearing. The State failed to present evidence that no conditions
or combination of conditions could be imposed to reasonably protect the community if
Defendant was released. Moreover, the State neither argued nor provided any assertion
that conditions of release sufficient to reasonably protect public safety could not be
imposed. Instead, the State focused its argument solely on the dangerousness
component of the detention determination, drawing the district court’s attention to
Detective Allred’s account of Defendant’s alleged admission to committing multiple
burglaries and the State’s concern that the burglaries involved “some firearm
connection.”

{15} The defense centered its argument on the State’s failure to present evidence at
both detention hearings: “[T]he State provided zero evidence as to whether or not
[Defendant] can abide by conditions of release.” Defense counsel pointed to
Defendant’s compliance with the release conditions imposed in the initial release order,
including Defendant’s apparent adherence to the order’s curfew requirements as
reflected in the ease by which the police rearrested Defendant at his mother’s residence
during evening hours covered by the court-ordered curfew. Defense counsel asked the
district court to release Defendant under the same conditions that were previously
imposed following the first detention hearing.

{16} Announcing its decision at the conclusion of the hearing, the district court
stressed, “There’s nothing more dangerous and—and more invasive than entering
somebody’s home through an unlocked door in the middle of the night. That is the most
dangerous activity that you can engage in. I want to make that extremely clear. The
extent of this is alarming—beyond alarming.” However, based on the fact that the
motion for detention was previously denied and that a period of time albeit short had
passed, and no homes were burglarized in the interim, the district court concluded that
“conditions of release can be fashioned in which the [c]ourt feels that they can prevent
[Defendant] from committing future crime and protect the safety of the community.”

{17} A formal order was entered in which the district court found Defendant to be
dangerous, but because “the State having again failed to provide by clear and
convincing evidence that no conditions of release will reasonably protect the safety of
another person or the community” and because “a good faith argument cannot be made
against release on conditions of release when the request for pretrial detention was
already once denied and Defendant was without violation after that release,” the State’s
second motion for detention was denied. Defendant was ordered to be released subject
to the original conditions with the added requirements that he live at home, submit to
drug and alcohol testing, maintain thirty hours of weekly employment, submit to medical,
psychological, psychiatric or substance abuse treatment, and comply with geographical
restrictions by GPS monitoring.

{18} The State appealed to the Court of Appeals, which summarily affirmed the district
court’s order, and we granted certiorari. See Rule 12-204 (D), (E) NMRA.

II. DISCUSSION

{19} The State’s petition for certiorari reminds us that in State v. Ferry, 2018-NMSC-
004, ¶ 6, 409 P.3d 918, we held “that the nature and circumstances of a defendant’s
conduct in the underlying charged offense(s) may be sufficient, despite other evidence,
to sustain the State’s burden of proving by clear and convincing evidence that the
defendant poses a threat to others or the community.” The State then declares, “The
Court did not address whether this same evidence may be sufficient, by itself, to sustain
the State’s burden to prove that no release conditions will reasonably protect the safety
of the community.” The State appeals to this Court to answer that question.

A. Standard of Review

{20} A district court’s decision addressing pretrial release or detention issues will be
set aside only upon a showing that the decision (1) “is arbitrary, capricious, or reflects
an abuse of discretion,” (2) “is not supported by substantial evidence,” or (3) “is
otherwise not in accordance with law.” Rule 12-204(D)(2)(b). “An abuse of discretion
occurs when the court exceeds the bounds of reason, all the circumstances before it
being considered.” Brown, 2014-NMSC-038, ¶ 43 (internal quotation marks and citation
omitted); see Ferry, 2018-NMSC-004, ¶ 2 (defining the term discretion in the context of
a pretrial detention appeal as “the authority of a district court judge to select among
multiple correct outcomes”). “Substantial evidence is such relevant evidence that a
reasonable mind would find adequate to support a conclusion.” State v. Groves, 2018-
NMSC-006, ¶ 25, 410 P.3d 193 (internal quotation marks and citation omitted). And “a
decision is arbitrary and capricious if it is unreasonable or without a rational basis, when
viewed in light of the whole record.” Id. (internal quotation marks and citation omitted).

B. Bail Reform in New Mexico

{21} In Brown, 2014-NMSC-038, ¶¶ 19-38, and Torrez, 2018-NMSC-005, ¶¶ 33-68,
we summarized the history of bail in New Mexico and the United States. We reiterate
some of that history here to give context to our discussion and analysis.

{22} Beginning with statehood in 1912 and before it was amended, Article II, Section
13 of the New Mexico Constitution directed in pertinent part: “All persons shall be
bailable by sufficient sureties . . . .” N.M. Const. art. II, § 13 (1911, amended 2016). In
1988, this right to bail provision was amended to read, “All persons shall, before
conviction be bailable by sufficient sureties . . . .”, N.M. Const. art. II, § 13 (1988,
amended 2016); see 1988 N.M. Laws, 1st Special Session at 1120 (“Constitutional
Amendment No. 5”), which persists today. With limited exceptions, 2 our Constitution has
guaranteed all persons accused of committing crimes the right to bail and release
pending trial. This was also true for almost every state constitution adopted after 1776,
and at the federal level by the Judiciary Act of 1789, ch. 20, § 33, 1 Stat. 73. Brown,
2014-NMSC-038, ¶¶ 26-27. The constitutional right to bail upholds the fundamental
principle that a defendant is not to be punished—imprisoned—until the charges brought
by the state are proven beyond a reasonable doubt in a court of law. See id. ¶ 19. Thus
the original purpose of bail in New Mexico was to ensure that the defendant appeared in
court as required. Id. ¶ 38. Upon release, a defendant’s pretrial freedom was
conditioned on appearing in court as required, complying with the law, and complying
with any conditions of release imposed by the court. Id. ¶ 21. A defendant’s failure to
satisfy any of these conditions could result in revocation of the release and a remand of
the defendant into custody. Id.

{23} Subsequently, studies of bail in the United States recognized inequities, chief
among which was that money bail discriminated against the poor. Id. ¶¶ 28-32. Indigent
defendants who were unable to post bail were therefore imprisoned—punished—solely
because they could not afford to post bail or pay commercial bondsmen to secure their
release pending trial. Id. These concerns motivated Congress to enact the Bail Reform
Act of 1966, Pub. L. No. 89-465, 80 Stat. 214, the first major federal reform since the
Judiciary Act of 1789. Brown, 2014-NMSC-038, ¶ 33. Under this act, release on
personal recognizance was the presumptive norm, unless the judge “determined that
such release [did] not reasonably assure the defendant’s appearance in court,” in which
case the judge would determine a “conditional pretrial release under supervision or
other terms” designed to reasonably assure the defendant’s appearance and decrease
the risk of flight. Id. ¶ 33.

{24} However, the 1966 act did not account for or recognize circumstances in which a
defendant posted bond and was released but was a danger to another person or the
community. Id. ¶ 34. This was addressed by Congress in the Bail Reform Act of 1984,
which retains many of the key provisions of the 1966 act but at the same time “allows a
federal court to detain an arrestee pending trial if the Government demonstrates by
clear and convincing evidence after an adversary hearing that no release conditions ‘will
reasonably assure . . . the safety of any other person and the community.’” United
States v. Salerno, 481 U.S. 739, 741, (1987) (omission in original) (quoting the Bail

2The first phrase of the current exceptions to the constitutional right to bail, “for capital offenses when the
proof is evident or the presumption great,” was present at statehood; the 1980 constitutional amendment
added the second phrase of the current exceptions, “in situations in which bail is specifically prohibited by
this section.” N.M. Const. art. II, § 13 (1911, 1980, amended 2016); see 1979 N.M. Laws, 1st Regular
Session at 2003 (“Constitutional Amendment 3”). The 1980 constitutional amendment also added the only
two additional specific exceptions to the right to bail: when (1) the defendant was charged with “a felony
and ha[d] previously been convicted of two or more felonies, within the state” and (2) the defendant was
charged with “a felony involving the use of a [firearm] and ha[d] a prior felony conviction, within the state,”
neither of which the 2016 amendment retained. N.M. Const. art. II, § 13 (1980, amended 2016).
Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837); see Brown, 2014-NMSC-038, ¶
34.

{25} Our first bail rules were adopted in 1972. Brown, 2014-NMSC-038, ¶ 37.
Modeled on the federal 1966 act, the rules normalized a presumption of pretrial release
by the least restrictive conditions, emphasizing that they should not require financial
security. Id. With the passage of the federal 1984 act, our rules added that the court, in
fashioning conditions of release, was also required to consider the potential danger to
the community caused by the defendant’s release. Id. ¶ 38. Nevertheless, a
presumption of pretrial release under the least restrictive conditions remained the
normative presumption. Id. ¶¶ 39-41.

{26} In 2016, for the first time since statehood, a constitutional amendment was
passed which granted judicial authority to deny a defendant pretrial release. Torrez,
2018-NMSC-005, ¶ 1. In pertinent part, Article II, Section 13 of the New Mexico
Constitution now states, “Bail may be denied by a court of record pending trial for a
defendant charged with a felony if the prosecuting authority requests a hearing and
proves by clear and convincing evidence that no release conditions will reasonably
protect the safety of any other person or the community.”

C. The Requirements for Pretrial Detention

{27} In order to subject a presumed-innocent defendant to pretrial detention, the state
is required to prove “by clear and convincing evidence that (1) the defendant poses a
future threat to others or the community, and (2) no conditions of release will reasonably
protect the safety of another person or the community.” Ferry, 2018-NMSC-004, ¶ 3;
Torrez, 2018-NMSC-005, ¶¶ 100, 102. That is the shared mandate of our New Mexico
Constitution, court rules, and case law. See N.M. Const. art. II, § 13; Rule 5-409; Ferry,
2018-NMSC-004, ¶ 3; Torrez, 2018-NMSC-005, ¶¶ 100, 102.

{28} In keeping with the presumption of innocence that attaches to all defendants prior
to conviction, and with the related maxim that “punishment should follow conviction, not
precede it,” Sewall v. Eighth Jud. Dist. Ct. ex rel. Cnty. of Clark, 481 P.3d 1249, 1253
(Nev. 2021) (internal quotation marks and citation omitted), our Constitution requires the
state to be held to an exacting standard when it asks a court to order a defendant to
remain jailed while awaiting trial. See N.M. Const. art. II, § 13. Proof by clear and
convincing evidence represents that standard, one satisfied only by “evidence that
instantly tilts the scales in the affirmative when weighed against the evidence in
opposition and the fact finder’s mind is left with an abiding conviction that the evidence
is true.” Groves, 2018-NMSC-006, ¶ 36 (brackets, internal quotation marks, and citation
omitted).

{29} Although the clear and convincing evidence threshold is a “heavy burden,” State
v. Lara, 1990-NMCA-075, ¶ 24, 110 N.M. 507, 797 P.2d 296, it is by no means beyond
reasonable reach. In practical terms, the evidentiary burdens imposed on the state at a
pretrial detention hearing are considerably less severe than those the state faces at
trial. In this respect, our case law and court rules afford the state considerable flexibility
and ease in presenting its case for detention by (1) dispensing with the rules of
evidence, Rule 5-409(F)(5), (2) declining to extend a defendant’s constitutional
confrontation rights to a detention hearing, Torrez, 2018-NMSC-005, ¶¶ 45, 89, 91, and
(3) not imposing any categorical requirement for live-witness testimony, id. ¶¶ 80-95,
110; Ferry, 2018-NMSC-004, ¶ 3 (endorsing the use in detention hearings of live
testimony or a “proffer [of] documentary evidence in a form that carries sufficient indicia
of reliability”). The state, far from being bound by all the requirements of the Constitution
and the rules of evidence, may rely on “all helpful and reliable information” at its
disposal, Torrez, 2018-NMSC-005, ¶ 103, to establish to the court’s satisfaction, under
the clear and convincing standard, that no conditions of release will reasonably protect
the public against a defendant’s future dangerousness. This lenient evidentiary burden
persists even though a defendant detained while awaiting trial—and innocent until
proven guilty—will be subjected to conditions of confinement identical to those imposed
on a defendant proven guilty beyond a reasonable doubt at trial.

{30} The state’s burden of proving the first element required to obtain pretrial
detention has been considerably lessened. The state may rely solely on “the nature and
circumstances of a defendant’s conduct in the underlying charged offense(s)” as
sufficient to prove by clear and convincing evidence that a defendant is dangerous—
that is, “that the defendant poses a [future] threat to others or the community.” Ferry,
2018-NMSC-004, ¶ 6. Thus the state, the prosecuting authority that decides which
offenses to charge the defendant with in the first place, may now rely on those same
charges for proof of dangerousness. Id.

{31} However, we also emphasized in Ferry that even if this initial burden is satisfied,
“the State must still prove by clear and convincing evidence, under Article II, Section 13,
that ‘no release conditions will reasonably protect the safety of any other person or the
community.’” Ferry, 2018-NMSC-004, ¶ 6. Here, the State’s burden of proving this
second element required for pretrial detention cannot be lessened. It is the
constitutional standard mandated by Article II, Section 13. We have already noted that
the State failed to produce any evidence or make any argument that no release
conditions could be imposed to reasonably protect the safety of any other person or the
community. “We are not oblivious to the pressures on our judges who face election
difficulties, media attacks, and other adverse consequences if they faithfully honor the
rule of law when it dictates an action that is not politically popular.” Brown, 2014-NMSC-
038, ¶ 54. Even so, under the Constitution and our rules, the district court judge in this
case was left with no alternative but to deny the State’s motion to detain Defendant.
This legal dictation to which the district court judge adhered is not some new revelation.
Since 2017, Rule 5-409(H) has directed that “[t]he court shall deny the motion for
pretrial detention if, on completion of the pretrial detention hearing, the court determines
that the prosecutor has failed to prove the grounds for pretrial detention by clear and
convincing evidence.”

{32} Recognizing that it failed (twice) to make its case, the State now asks us to
ignore the explicit mandate of the Constitution and our rules and hold that the nature
and circumstances of a defendant’s conduct in the underlying charged offense(s) may
be sufficient, by itself, to sustain the State’s burden to prove that no release conditions
will reasonably protect the safety of the community.

D. The State’s Misplaced Reliance on a Single Factor as Dispositive of the
State’s Detention Burden

{33} We now turn to the core of the State’s appeal, its contention that the “extreme”
nature of Defendant’s “lawlessness” evidenced a “habitual wanton disregard for the law
and for homeowner safety,” a circumstance that, in the State’s view, is incompatible with
a finding that a combination of release conditions could provide an adequate deterrent
to further dangerous criminal conduct. As explained next, this argument is both
unpreserved for appellate review and lacking in merit.

{34} As for preservation, at the detention hearing giving rise to this appeal, the State
failed to make any argument to the district court judge that no release conditions could
be imposed that would reasonably protect the safety of any other person or the
community, and the State never invoked a ruling from the district court judge on the
issue that it now raises on appeal. See Rule 12-321(A) NMRA In fact, this Court
expressed its concern regarding the State’s failure to argue to the district court that no
conditions of release would be sufficient to protect the community from Defendant. The
State conceded that it was required to make the argument and acknowledged that its
arguments to the district court only “focused on dangerousness.” This familiar
preservation principle takes on particular significance in the context of pretrial detention
hearings. After all, rulings stemming from detention hearings are by their nature high-
stakes endeavors fraught with uncertainty; rulings made all the more challenging by the
short deadlines governing their issuance. See Rule 5-409(G), (H) (requiring the district
court to issue an order granting or denying a detention motion upon the completion of
the detention hearing and to file “findings of the individualized facts” justifying its ruling
“no later than three (3) days after the conclusion of the hearing”). Considering the
demanding nature of the district judges’ role in deciding pretrial detention motions, it is
incumbent on the prosecuting attorney and defense counsel alike to clearly stake out
their respective hearing positions on the record. The interests of justice—and of fairness
to all involved and to the community at large—demand no less.

{35} Here, when asked if there were “any other arguments as to conditions of
release,” the State responded, “I would ask for a GPS monitor.” The district court judge
then announced the updated conditions of release, including GPS monitoring, and
asked again, “Is there any other conditions of release or any other arguments from [the
State] or [Defendant] at this time?” The State responded, “No arguments, Your Honor.”
Having failed at the detention hearing giving rise to this appeal to raise any argument
opposing Defendant’s release on conditions, the State will not now be heard to
complain that the hearing’s outcome on that issue was not to its liking.

{36} Moreover, putting such preservation issues aside, the State would not prevail
even were we to consider its apparent contention that the district court erred in not
giving dispositive effect to the nature and circumstances of Defendant’s underlying
conduct in gauging the likely effectiveness of potential release conditions. That position
is directly at odds with controlling precedent from this Court, which makes clear that
pretrial detention or release decisions cannot be made to turn on any single factor, be it
the nature and circumstances of the charged offense(s) or otherwise. See Torrez, 2018-
NMSC-005, ¶ 101 (“Detention decisions, like release conditions, should not be based
categorically on the statutory classification and punishability of the charged offense.”);
Brown, 2014-NMSC-038, ¶ 52 (“Neither the Constitution nor our rules of criminal
procedure permit a judge to base a pretrial release decision solely on the severity of the
charged offense.”); Ferry, 2018-NMSC-004, ¶ 7 (cautioning “litigants and the court”
against “automatically consider[ing] any one factor to be dispositive in pretrial detention
hearings”). To allow the State to rely solely on the nature and circumstances of the
charged offenses, not only to prove that the defendant poses a future threat to others or
the community but also to prove that no release conditions will reasonably protect the
safety of any other person or the community, would all but eliminate Article II, Section
13 and the corresponding constitutional burden of the State.

{37} Adoption of such a rigid interpretation of Rule 5-409(F)(6) also would run counter
to what aptly has been described in the federal realm as the unique, “factbound” nature
of a court’s pretrial detention determination, which “must be made individually and, in
the final analysis, must be based on evidence which is before the court regarding the
particular defendant.” United States v. Tortora, 922 F.2d 880, 888 (1st Cir. 1990); see
id. (“No two defendants are likely to have the same pedigree or to occupy the same
position.”); accord United States v. Traitz, 807 F.2d 322, 325-26 (3d Cir. 1986) (“Each
[pretrial detention] case, of course, is sui generis, and must be decided on the basis of
the particular record adduced.”).

{38} Instead, a more expansive, broad-based approach is dictated under the
prevailing New Mexico court rule governing the pretrial detention process, whose
provisions make clear that the district court

shall consider any fact relevant to the nature and seriousness of the
danger to any person or the community that would be posed by the
defendant’s release and any fact relevant to the issue of whether any
conditions of release will reasonably protect the safety of any person or
the community.

Rule 5-409(F)(6) (emphases added). The rule, in Subparagraphs (a)-(g), goes on to set
forth a nonexhaustive list of seven factors intended to guide the parties’ presentation of
evidence—and the resulting findings of the court—bearing on the two central inquiries
stated at the beginning of Subsection (F)(6) of the rule: “the nature and seriousness of
the danger to any person or the community that would be posed by the defendant’s
release” and the separate but related question of “whether any conditions of release will
reasonably protect the safety of any person or the community.” The relevant factors
specified in Rule 5-409(F)(6) are as follows:

(a) the nature and circumstances of the offense charged, including
whether the offense is a crime of violence;
(b) the weight of the evidence against the defendant;
(c) the history and characteristics of the defendant;
(d) the nature and seriousness of the danger to any person or the
community that would be posed by the defendant’s release;
(e) any facts tending to indicate that the defendant may or may not
commit new crimes if released;
(f) whether the defendant has been ordered detained under Article II,
Section 13 of the New Mexico Constitution based on a finding of dangerousness
in another pending case or was ordered detained based on a finding of
dangerousness in any prior case; and
(g) any available results of a pretrial risk assessment instrument
approved by the Supreme Court for use in the jurisdiction, provided that the court
shall not defer to the recommendation in the instrument but shall make an
independent determination of dangerousness and community safety based on all
information available at the hearing.

{39} The first of the factors listed for consideration under this rule involves “the nature
and circumstances of the offense charged.” Rule 5-409(F)(6)(a). Nothing in the rule
suggests, however, that the placement of this factor at the top of the list of other
relevant factors somehow signals that singular importance can be given to it. And the
State offers no textual analysis in support of such an interpretation. Nor is there any
other basis on which to construe the rule in a manner more restrictive than its literal
wording and in the process allow detention judges to consider “the nature and
circumstances of the offense” factor in isolation and to the exclusion of all other relevant
factors, whether those factors are expressly identified in the rule or not. To the contrary,
Rule 5-409(F)(6) must be read to require a detention court to engage in a delicate case-
by-case balancing of all relevant factors, with the calculus limited only “by what
evidence the litigants present.” Ferry, 2018-NMSC-004, ¶ 7.

III. CONCLUSION

{40} For the reasons stated in this opinion, we abide by our prior order upholding the
Court of Appeals’ affirmance of the district court’s denial of pretrial detention.

{41} IT IS SO ORDERED.

MICHAEL E. VIGIL, Justice

WE CONCUR:

C. SHANNON BACON, Chief Justice

DAVID K. THOMSON, Justice

JULIE J. VARGAS, Justice