STATE V. ORTIZ, 2009-NMCA-092, 146 N.M.
873, 215 P.3d 811
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
MARTY ORTIZ, Defendant-Appellee.
COURT OF APPEALS OF NEW MEXICO
2009-NMCA-092, 146 N.M. 873, 215 P.3d 811
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY,
Stephen D. Pfeffer, District Judge.
Released for Publication September 1,
2009.
Gary K. King, Attorney General, Santa Fe,
NM, Joel Jacobsen, Assistant Attorney General, Albuquerque, NM, for Appellant.
Robert E. Tangora, L.L.C., Robert E.
Tangora, Santa Fe, NM, for Appellee.
JONATHAN B. SUTIN, Judge. WE CONCUR:
MICHAEL E. VIGIL, Judge, LINDA M. VANZI, Judge.
AUTHOR: JONATHAN B. SUTIN.
{1} The State appeals
from the district court’s order dismissing the charges against Defendant with
prejudice, in part due to the State’s failure to comply with a discovery order
under Rule
5-501(A)(3) NMRA. The court determined that Defendant made a
threshold showing that the discovery requested was potentially material to the
defense and ordered the State to identify whether any such material evidence
existed. The State chose not to comply in any manner with the district court’s
order, and the court dismissed the case with prejudice. We conclude the court
did not abuse its discretion in doing so.
{2} Defendant Marty
Ortiz was indicted in April 2006 for driving while intoxicated (DWI) and three
related charges. At a hearing on June 19, 2006, the prosecutor stated that on the
night in question a person overdosed on heroin at a local convenience store,
that police officers were looking for that particular person traveling in a
gold or tan Honda or Acura, and that it turned out the person they were looking
for was a passenger in Defendant’s car. The prosecutor further stated that
Officer John Boerth was in a location on the south side of the city where he
witnessed a car weaving and driving recklessly. Officer Boerth activated his
emergency equipment in order to stop the vehicle driven by Defendant. When
Officer Boerth “spotted . . . [D]efendant, he didn’t know if that was the car
involved in the heroin overdose or not.”
{3} Later in June 2006,
Defendant filed a motion to suppress all evidence and a request for an
inspection of the videotape of the stop. In the motion, Defendant set out
Officer Boerth’s grand jury testimony “that . . . Defendant’s driving behavior,
the reason he stopped the car, consisted of the multiple infractions of the car
failing to maintain [its] lane, multiple infractions of the car striking the
curb finally riding on the curb before the officer pulled the car over.” This
motion also stated that Officer Boerth testified that “he was looking for . . .
Defendant’s car because someone was performing ‘CPR’ on one of the passengers.”
In addition, the motion stated that the videotape of the stop indicated that
Defendant had “complete and lawful control of the vehicle and even used his
turn signal to properly pull the vehicle over for the officer,” thus indicating
that Defendant was not engaged in any driving behavior that would give the
officer reasonable suspicion on which to stop him. Defendant averred in the
motion that the search and stop were “pretextual and illegal,” and he asserted
that all of the evidence stemming from the stop should be suppressed.
{4} Defendant also
filed a motion to compel specific discovery. This motion sought “any and all
audio recordings and written logs including but not limited to dispatch records
and phone records of any kind which are relevant to the stop and arrest . . .
including any communications between [Officer] Boerth and any dispatcher,
police officers, or any other persons whatsoever.” Defendant asserted in this
motion that the videotape of the stop started at 19:17:45 and ended at
19:50:23, but that the time 19:18:52 to 19:24:27 was missing, “leaving a ‘gap’
in the [videotape] of six (6) minutes and thirty-five (35) seconds.” Defendant
requested “copies and access to evidence of all oral, electronic[,]
telephonic[,] or written communications made between Officer . . . Boerth and
any other person during this incident.”
{5} In response to
Defendant’s motions the State asserted that there was no video footage missing.
The State explained that the video camera taping between 19:17:45 and 19:18:52
was not related to Defendant’s stop but showed only that the officer was
patrolling in the rain and that the video footage involving Defendant began at
19:24:27.
{6} At a pretrial
conference in July 2006, Defendant reiterated his argument that the videotape
was missing six minutes of footage and that the videotape produced by the State
did not support the explanation that Officer Boerth gave for pulling him over.
Defendant challenged the stop based on the incomplete videotape and moved to
suppress all the evidence stemming from the stop. Defendant requested dispatch
logs and communications between the officer and dispatch, and he also requested
the production of any communications, including personal cell phone calls, that
Officer Boerth had with anyone.
{7} At the same
pretrial conference, the prosecutor again discussed what she had learned about
the officer’s activity that evening. She stated that the videotape showed that
the officer was driving on patrol through the rain on an unrelated charge. She
also stated that the reason for the six-minute gap in the videotape was because
the camera only turned on when the emergency equipment was engaged. And she
“strongly” objected to the discovery of Officer Boerth’s personal cell phone records
because they “would not be discoverable in this case.” The discovery and
suppression issues were not resolved at this pretrial conference, and no order
was issued as a result.
{8} The cell phone
records issue was discussed at a hearing on August 17, 2006. Defense counsel
stated that the officer had testified before the grand jury that he was looking
for someone traveling in Defendant’s car because they had a CPR situation and
suggested that this was an emergency and was the reason why the officer’s lights
were activated. Defense counsel complained that he received dispatch records
for every officer involved except Officer Boerth, and he again requested
records of any communications by Officer Boerth, including personal or
departmental cell phone records.
{9} The prosecutor
argued, again based on what she had learned from Officer Boerth, that he was
patrolling on Cerrillos Road in Santa Fe, New Mexico and “was looking for a car
that fit . . . [D]efendant’s [vehicle’s] description, however, he never found
that car.” She stated that when the videotape “comes on again[] is when . . .
[D]efendant is being pulled over.” She also stated that at the time Officer
Boerth stopped Defendant he was not dispatched to the location, and it was the
prosecutor’s understanding that this was why the officer was not part of the
dispatch records.
{10} The prosecutor
argued that the first part of the videotape showed that the officer was
patrolling on Cerrillos Road, in the rain, having nothing to do with Defendant;
that the next time the camera and the emergency equipment were turned on was
when the officer pulled Defendant over; and that there was no six-minute gap
because officers do not have their equipment on constantly. The prosecutor
asserted that Defendant was not entitled to private communications on an
officer’s private cell phone number. She wanted Defendant to “brief that
subject, because there is no way that the State is giving out that
information.”
{11} In response, defense
counsel explained that Defendant was only asking for records of communications
the officer had within the relevant six-minute period. Counsel argued that
dispatch records showed there was a drug case going on around the time of the
six-minute gap and argued that Defendant had a right to explore whether a stop
that started on a suspicion of drugs turned into a DWI case. Counsel contended
that the officer did not have an expectation of privacy of his cell phone
records while on duty, on patrol, in a marked unit, during an emergency or
arrest situation. The prosecutor indicated that an evidentiary hearing was
necessary to resolve factual issues, and she again asserted that the defense
did not have any right to access the officer’s personal cell phone records.
{12} At the close of the
foregoing arguments at the August 17 hearing, the court determined that the
issue Defendant raised was “a relevant issue” and that Defendant had a right to
access the requested information even without knowing whether any such
information existed. The court orally granted Defendant’s motion to compel
specific discovery, but stated that (1) the phone records requested were for a
very finite period of time; (2) if there was no recording of a phone
conversation, it would be appropriate to produce the phone record; (3) if there
existed a defense to the discovery of the records, such as the disclosure of a
confidential informant, the State could file a motion to prohibit the
discovery; and (4) if there were personal matters irrelevant to the case, the
State could file a motion for an in camera review.
{13} On August 29, 2006,
the State filed an amended response to Defendant’s motion to compel specific
discovery. The State asserted that Officer Boerth “has a reasonable expectation
of privacy in his personal cell phone records.” The State cited “U.S.
Constitution, Amendments I, IV[,] and XIV; N.M. Constitution, Art. [II],
Sections [4], [10,] and [18].” The State also asserted that Officer Boerth did
“not consent to the disclosure of his personal cell phone records” and that “[h]e
has a constitutionally protected privacy interest in his personal property.” In
addition, the State argued that “[p]ursuant to the Electronic[] Communications
Privacy Act outlined in 18 U.S.C.A. §§ 2510, 2701[,] and 2703(2)(c) [(2006)],
the party seeking disclosure of personal cell phone records must make a showing
that there are reasonable grounds to believe that the contents of the records
are relevant and material to an ongoing criminal investigation.” The State
further argued that Defendant failed to make a proper showing of either
relevancy or materiality and that merely requesting the phone records did not
satisfy the requirements for obtaining such records. Attached to the motion was
an affidavit of Officer Boerth asserting a constitutional right of a protected
privacy interest in his personal cell phone records, citing the same
constitutional provisions cited by the State in its amended response and
stating that he did not receive personal notice of the court’s order and did
not consent to the order.
{14} Also on August 29,
Defendant filed a motion to dismiss for prosecutorial misconduct and speedy
trial, and in the alternative, to suppress evidence or dismiss pursuant to Rule
5-501(H) NMRA (failure to comply with discovery) and Rule
5-505(B) NMRA (failure
to comply with continuing duty to disclose). Defendant argued that despite
being ordered at the hearing to produce the officer’s cell phone records, the
State had not yet produced them and that the prosecutor had indicated she was
not required to produce any discovery until a written order was signed by the
court. In Defendant’s view, the State had no intention whatsoever of producing
the records.
{15} The following day,
August 30, 2006, the district court entered a written order on the motion to compel
specific discovery. The order referred to the August 2006 hearing and stated
that the court was “fully informed regarding the issue of discovery.” The order
required the State to “produce all tangible records or recordings of any and
all communications, including but not limited to any cell phone records or
communications, made by or to Officer . . . Boerth during the [six] minute and
[thirty-five] second period that the [v]ideo unit in his patrol vehicle was not
engaged regarding his patrol and stop of . . . Defendant.” On September 18,
2006, the State filed a petition for issuance of a writ of mandamus and
superintending control in the New Mexico Supreme Court in Cause No. 30,017,
State
ex rel. Valdez v. Pfeffer. The Supreme Court stayed the proceedings on
September 21, 2006, but on November 17, 2006, denied the State’s request for
writ relief.
{16} On November 20,
2006, Defendant filed his third motion to dismiss for prosecutorial misconduct
and speedy trial. His grounds were simply and briefly stated: (1) no discovery,
(2) sixteen months in county jail, and (3) the writ was denied. The State did
not respond to this motion.
{17} On December 8, 2006,
the State filed a motion in which it asserted that “Officer Boerth did not
provide his personal cell phone records to the State for any prosecutorial
action and therefore [the records were] not in the possession of the State.”
The State further asserted that it could not compel Officer Boerth to give up
his personal cell phone records and that the government, including the court,
“[cannot] override an individual’s privacy interests.”
{18} Defendant filed a
request in January 2007 for a setting on all outstanding motions to dismiss and
suppress, and the court set a hearing for February 21, 2007. At the hearing,
the court asked the State why it had not filed a response to Defendant’s third
motion to dismiss for prosecutorial misconduct and speedy trial. The State
responded that it did not think there was anything to respond to given that
there was nothing substantive and no cited authority to respond to.
{19} After the State’s
response, the court stated that the police are “an arm of the State,” and the
court found insulting the State’s implication that Defendant stated no
articulable reason for the requested discovery after the court had determined
there was a reason for requiring production. The court further stated that its
order “was a very limited [o]rder in this instance for a very limited time
period.” The court reiterated its suggestion that it review the records in
camera.
{20} In conclusion, the
court found “the actions of the State [to be] in bad faith, arguably
intentionally preventing this trial from going forward.” Further, the court
found that the State had flaunted the court’s order for simple discovery and
that Defendant was prejudiced.
{21} The court entered a
written order on February 21, 2007, granting Defendant’s motion to dismiss with
prejudice. The charges against Defendant were dismissed on three grounds: (1)
the State was still in violation of the court’s discovery order, (2) the State
failed to respond to Defendant’s third motion to dismiss for prosecutorial
misconduct and speedy trial, and (3) Defendant had been in custody for over
nineteen months.
{22} The State raises six
issues on appeal: (1) the district court abused its discretion when it
dismissed the case based on non-disclosure of communications and records that
were not subject to disclosure under Rule 5-501, (2) the order of dismissal was
erroneous under New Mexico law governing discovery sanctions, (3) the district
court failed to give the officer notice and an opportunity to be heard before
depriving him of his private rights to his personal cell phone records, (4)
public employees possess a constitutional right to privacy in their personal
telephone records and communications, (5) the district court’s order
unreasonably demanded that the State violate federal law and expose itself to
civil liability, and (6) the Supreme Court’s unexplained denial of the petition
for an extraordinary writ was not res judicata or law of the case.
{23} We conclude that the
district court did not err in dismissing the case because of the State’s
failure to comply with the court’s discovery order. We then briefly address the
State’s remaining four points and hold that they do not require reversal.
I. The
State’s First Two Points on Appeal
{24} The State’s
first two points on appeal attack the district court’s discovery order and
dismissal. A district court’s decisions with regard to discovery are reviewed
for an abuse of discretion.
State v. Dominguez,
2007-NMSC-060, ¶ 25,
142
N.M. 811,
171 P.3d 750;
State v. Jackson,
2004-NMCA-057, ¶ 10,
135 N.M.
689,
92 P.3d 1263 (“Sanctions for noncompliance with discovery orders are
discretionary with the trial court.”).
{25} Rule 5-501(A)(3)
mandates that “the [S]tate shall disclose or make available to the defendant .
. . any books, papers, documents, photographs, tangible objects, buildings or
places, or copies or portions thereof, which are within the possession,
custody[,] or control of the [S]tate, and which are material to the preparation
of the defense.”
{26} We proceed on the
assumption that it can reasonably be inferred from the statements of the
prosecutor and the affidavit of the officer, as well as from the intensity of
the State’s opposition to discovery, that the officer in fact had a personal
cell phone with him at the time in question, although there exists no evidence
or even a statement by the prosecutor or the officer that the officer in fact
had a cell phone. On appeal, the State has an insurmountable hurdle to overcome
for success in its attack on the district court’s discovery order. In this
case, Defendant established a prima facie case under Rule 5-501 for discovery.
The State, however, did not adequately develop or otherwise preserve any
position or argument in the district court on the elements of control,
materiality, and prejudice to refute Defendant’s prima facie case for
discovery.
{27} Defendant showed
that the cell phone records were in the control of the State because they were
in the possession of the officer during the time in question. Indeed, the court
agreed, finding that the officer was an arm of the State. And the State in its
brief in chief acknowledges that the court “ruled that the [officer] was ‘an
arm of the State’ and that therefore his private telephone records were ‘within
the possession, custody[,] or control of the [S]tate,’ making them subject to
disclosure under Rule 5-501(A)(3).”
See State v. Wisniewski,
103
N.M. 430, 435,
708 P.2d 1031, 1036 (1985) (holding that the requirement of
disclosing evidence favorable to the defense “applies to all members of the
prosecution team, including police authorities” (citation omitted));
State
v. Jackson,
2004-NMCA-057, ¶¶ 12-14,
135 N.M. 689,
92 P.3d 1263.
{28} Defendant also
showed that the cell phone records were potentially material to his defense,
given that they might contain information indicating why the officer stopped
Defendant. The court in fact determined that the records were potentially
material. That the records may not, after in camera or other inspection, have
turned out to contain information that would assist in Defendant’s defense was
not a basis on which, at the discovery stage, to assert that the records were
not material to preparation of the defense. A discovery right does not require
a defendant to know or show in advance that the records will actually contain
helpful information. A defendant need only show circumstances that reasonably
indicate that records may contain information material to the preparation of
the defense.
See United States v. Lloyd, 992 F.2d 348, 350-51
(D.C. Cir. 1993) (explaining that under Federal Rule of Criminal Procedure
16(a), from which Rule 5-501 was derived, the “materiality standard . . . is
not a heavy burden; rather, evidence is material as long as there is a strong
indication that it will play an important role in uncovering admissible
evidence, aiding witness preparation, corroborating testimony, or assisting
impeachment or rebuttal” (internal quotation marks and citations omitted); Rule
5-501 comm. cmt. (stating that the rule was derived from Rule 16(a) of the
Federal Rules of Criminal Procedure).
{29} Defendant also
showed that denial of the discovery was prejudicial, in that were the
information material to his defense of unlawful stop, but not produced, he
would be denied the opportunity to prove an unlawful stop and obtain
suppression relief. The court also determined that Defendant was prejudiced.
Deprived of the opportunity to discover whether the records contained
information material to the preparation of his defense, discovery he was
entitled to pursue under Rule 5-501(A)(3), the district court did not abuse its
discretion in determining that Defendant was prejudiced.
{30} The focus of the
State’s positions and arguments in the district court was that the State did
not have possession of the cell phone records, the officer had a reasonable expectation
of privacy in his phone records, and it was Defendant’s responsibility to
subpoena the records from the officer and give the officer an opportunity to
resist production of the records. The State was not going to comply in any
respect with the court’s discovery order, which included the State’s apparent
refusal to even attempt to ascertain whether any record existed and to report
that information to the court or to have the records viewed in camera for
materiality.
{31} The State failed to
preserve for argument on appeal that the State lacked control over the
officer’s phone. To the extent there may have been undeveloped facts relating
to control, it was the State’s burden to present those facts to dispel control.
Not only did the State fail to present such facts, the State did not even
request a hearing for that purpose. Furthermore, as to materiality, while the
State asserted that Defendant did not make a proper showing of materiality,
this argument was never adequately developed through example or discussion of
why the records were not potentially material to the defense. Therefore, the
State failed to preserve any argument relating to materiality. The State also
failed to argue that Defendant would not be prejudiced if discovery were
refused. Thus, that argument, too, was not preserved for appeal. As a result,
we will not entertain the State’s arguments on appeal in regard to control,
materiality, or prejudice.
{32} A party cannot
“throw out legal theories without connecting them to any elements and any
factual support for the elements.”
Lovato v. Crawford & Co.,
2003-NMCA-088, ¶ 30,
134 N.M. 108,
73 P.3d 246. “To preserve an issue for
review on appeal, it must appear that appellant fairly invoked a ruling of the
trial court on the same grounds argued in the appellate court.”
Woolwine v.
Furr’s, Inc.,
106 N.M. 492, 496,
745 P.2d 717, 721 (Ct. App. 1987). We will
not consider issues not raised in the district court unless the issues involve
matters of jurisdictional or fundamental error.
See In re Aaron L.,
2000-NMCA-024, ¶ 10,
128 N.M. 641,
996 P.2d 431. Nor will we review an
undeveloped and unclear argument on appeal.
Headley v. Morgan Mgmt. Corp.,
2005-NMCA-045, ¶ 15,
137 N.M. 339,
110 P.3d 1076.
{33} The State attempts
to overcome any duty to produce records that are material to the defense and
within its control by arguing various manifestations of a view to which it
steadfastly adhered in the district court and now on appeal, namely, that given
Officer Boerth’s privacy right, the only way that Defendant was entitled, if at
all, to the records and information was to subpoena the officer’s cell phone
records. Thus, the State’s answer to the standoff is that the court could have
resolved the matter by simply telling Defendant to subpoena the officer’s
records and communications and that the court should have told Defendant to
subpoena the records before “leap[ing] immediately to the extreme sanction of
dismissing charges supported by probable cause.” In addition, the State asserts
that, at the very least, the district court should have required defense
counsel to interview the officer to find out if the requested records or
communications even existed.
{34} We reject the
State’s various arguments. We are not convinced that, under the circumstances in
this case, the burden and duty of the State under Rule 5-501(A)(3) are to be
dispensed with based on a view that, because an on-duty police officer’s
personal cell phone may somehow be involved, the only way a defendant can
determine if the cell phone records will assist in the preparation of his
defense is to subpoena the officer’s cell phone records and/or interview the
arresting officer.
Propriety of Dismissal with
Prejudice
{35} Here we review
whether the district court’s sanction of dismissal with prejudice for
noncompliance with the discovery order was erroneous. The parties treat the
dismissal as one under Rule 5-505. The State asserts that on appeal it is not
asking that a lesser sanction be imposed, only that the ultimate sanction of
dismissal was not authorized under Rule 5-505. Rule 5-505(B) provides, “If at
any time during the course of the proceedings it is brought to the attention of
the court that a party has failed to comply with this rule or with an order
issued pursuant to this rule, the court . . . may enter such other order as it
deems appropriate under the circumstances.” “The remedy for violating a
discovery order is within the discretion of the trial court.”
State v.
Montoya,
116 N.M. 297, 304,
861 P.2d 978, 985 (Ct. App. 1993);
see also
Jackson,
2004-NMCA-057, ¶ 10 (“Sanctions for noncompliance with discovery
orders are discretionary with the trial court.”). We will not disturb the
district court’s ruling absent an abuse of discretion.
Montoya, 116 N.M.
at 304, 861 P.2d at 985. As the appellant, it is the State’s burden to
establish an abuse of discretion.
State v. Layne,
2008-NMCA-103, ¶ 10,
144 N.M. 574,
189 P.3d 707.
{36} The critical issue
is whether the dismissal with prejudice was an abuse of discretion after the
State’s refusal to comply with orders that the State determine the existence of
records within the State’s control and produce the records or make them
available for in camera review, while also permitting the State to seek
protection from production based on lack of relevance or confidentiality
concerns. The State has never shown that it made any attempt to review any cell
phone records. The State has never shown that it took any step to ascertain
whether any relevant phone records existed. The State has never shown that it
even asked Officer Boerth about what information, if any, the cell phone itself
contained related to the six-minute time period. One can reasonably conclude
from the court record that the State never asked to examine or attempted to
examine the cell phone. The State has steadfastly indicated it would not make
that attempt and that Defendant would have to subpoena the officer’s cell phone
records.
{37} The issue is not
about whether the State was required to or could physically seize and turn over
the officer’s private communications as the State on appeal has characterized
what the court ordered. This approach ignores the prosecution-team concept and
the State’s Rule 5-501(A)(3) disclosure duty as to evidence within its control.
The State was not as it contends flatly ordered to seize and physically hand
over the officer’s private cell phone records to Defendant. The court orally
conditioned its discovery order on several important considerations. In the
early as well as in the later proceedings, the court offered in camera review.
The court took careful measures to ensure the officer’s privacy, offering not
only in camera review but inviting the State to file an appropriate motion to
protect the documents if that were justified.
See Layne,
2008-NMCA-103,
¶ 10 (reiterating that where the district court’s written order does not
include limitations made in an oral ruling, the party is still required to
follow the limitations imposed);
see also State v. Gonzales,
1996-NMCA-026, ¶¶ 17, 20,
121 N.M. 421,
912 P.2d 297 (stating that the proper
procedure for determining materiality is in camera review);
State v. Ramos,
115 N.M. 718, 722,
858 P.2d 94, 98 (Ct. App. 1993) (stating that “trial courts
must exercise their discretion carefully to balance the legitimate interests of
all concerned” in connection with material that is of a sensitive and pursuant
nature and to “allow victims to keep their private affairs private”). The State
never questioned whether the court abandoned its oral limitations on production
when it entered its written order. In no way can the court’s action be
considered a firm and direct command that the State simply obtain the records
and hand them over to Defendant, as the State contends.
{38} Although the
prosecutor’s arguments against discovery changed as the issue lingered on, the
State’s core position never changed. The very essence of that position was that
the State was not entitled and had no obligation to inquire about, much less
review, the officer’s cell phone records. It is also important to note that the
State has never indicated whether police officers were permitted to use
personal cell phones for police-related investigation activity while on duty,
or whether Officer Boerth used his cell phone for police-related business while
on duty. It appears that the State has approached the issue here as one of
policy—a firm stand that the State will not become in any way involved in what
information may exist in an on-duty police officer’s cell phone during a
criminal investigation.
{39} The district court
found that “the actions of the State [were] in bad faith, arguably
intentionally preventing this trial from going forward.” The court also found
that the State flaunted the court’s order for what the court deemed to be
simple discovery. The court further found that this conduct prejudiced
Defendant.
See Jackson,
2004-NMCA-057, ¶ 10 (“A showing of
noncompliance is insufficient to entitle a defendant to dismissal or other
sanctions—the prejudice resulting from the violation must also be established.”).
The court record shows that the State’s actions constituted conscious,
intentional, and unjustifiable rejection of and refusal to comply with the
district court’s order. “[U]pon failure to obey a discovery order, the court
may enter such order as is appropriate under the circumstances.”
Layne,
2008-NMCA-103, ¶ 13 (alteration in original) (internal quotation marks and
citation omitted). We believe that the record supports the district court’s
findings, and we hold that the court did not abuse its discretion in dismissing
the case with prejudice under Rule 5-505. Therefore, we will not disturb the
district court’s decision.
Montoya, 116 N.M. at 304, 861 P.2d at 985.
II. The
State’s Third, Fourth, and Fifth Points
{40} The State’s third,
fourth, and fifth points are:
[The court] recognized that [its]
order implicated the [officer’s] “private rights” and “private interests,” but
did not give the [officer] notice and an opportunity to be heard before
depriving him of those private rights. There is no room to doubt that public
employees possess a constitutional right to privacy in their private telephone
records and communications.
[The court’s] order unreasonably
demanded that the State violate federal law and expose itself to civil
liability.
The third point is based on statements the district court
apparently made in documents filed in the writ proceeding before the Supreme
Court. The State asserts that the court recognized Officer Boerth’s private
interests and rights were implicated by its ruling. The State argues that
because the court recognized those interests and rights, the officer, being a
stranger to the proceedings, had a right to notice and an opportunity to be
heard, but the court failed to provide those procedural rights and Defendant
failed to subpoena the officer’s cell phone records. The court’s error, the
State claims, was that despite its recognition of the officer’s privacy rights,
the court premised its discovery order on the court’s view that the officer had
no such privacy interests and rights and thus no right to notice and
opportunity to be heard. To the extent the State considers this a point of
error separate from its first point, the State does not indicate where this
issue was raised in the district court after the petition for the writ was
denied or show how it was preserved. We therefore do not consider it. See
State v. Lente, 2005-NMCA-111, ¶ 11, 138 N.M. 312, 119 P.3d 737 (“On
appeal, the reviewing court will not consider issues that were not raised in
the trial court unless the issues involve matters of fundamental rights or
fundamental error.”).
{41} The fourth and fifth
points were not adequately developed by the State in the district court for
effective review. We note that although at the August 17, 2006, hearing the
prosecutor indicated that an evidentiary hearing was necessary to resolve
factual issues relating to the discovery request, the State does not indicate
that the prosecutor later sought such a hearing, and the State has not, on
appeal, asserted error or prejudice in regard to lack of an evidentiary hearing
that would have developed circumstances favorable to the position it now takes.
There is no indication in the court record or in the briefs that the State
placed before the court or that the court considered facts relating, for
example, to departmental policy on use of cell phones and any reasonable
expectation of privacy of the officer.
See State v. Janzen,
2007-NMCA-134, ¶ 11,
142 N.M. 638,
168 P.3d 768 (holding that preservation for
review requires a fair ruling or decision by the district court in order to
provide the lower court with an opportunity to correct any mistake, gives the
opposing party an opportunity to demonstrate why the district court should rule
in its favor, and creates a record that enables this Court to make informed
decisions). The circumstances underlying the issues the State raises on appeal
should have been, but were not, specifically and fully developed through
evidence, argument, and authority. Because the State failed to satisfy its
obligation to develop the circumstances and to specifically and fully argue the
points, we will not address those points on appeal.
See State v.
Casillas,
2009-NMCA-034, ¶ 12,
145 N.M. 783,
205 P.3d 830 (refusing to
consider the appellant’s argument on appeal because it was not fully developed
below).
{42} Further, logically
extended, the State’s position would result in the following untenable
consequence: even if an officer is permitted to use his cell phone to obtain information
that he believes creates a lawful basis for a stop, even if the personal cell
phone records of the on-duty officer who is investigating a possible crime
actually contain information relevant and material to the lawful basis for an
investigative stop, and even if the information is helpful and critical to the
preparation of the defense, the State would not even have to ask to review the
cell phone records, much less attempt to obtain and then disclose them. We will
not tie into a position that leads to what appears to us to be an unreasonable
if not absurd result.
{43} For its
constitutional arguments, the State cites federal case law involving a
government employee’s reasonable expectation of privacy in communications. None
of the cases the State cites involves an on-duty police officer’s use of a cell
phone for public purposes in connection with an investigation of possible
criminal activity. Nor do any of the cases have any relation to a criminal
proceeding instituted by the State, giving rise to a defendant’s right to a
fair trial, and involving discovery of records or communications that were
material to the preparation of the defense and within the control of the State.
The present case does not involve a secret recording of an officer’s communication,
an investigatory search into an officer’s malfeasance by searching records of a
service provider without the officer’s consent, or a search of unreasonable
scope. In fact, the present case does not involve a search at all, nor does it
involve a risk of violation of some protected individual interest in avoiding
disclosure of personal matters.
{44} The district court
in the present case minimized all risk of any constitutional violation by
offering in camera inspection and suggesting that protective motions could be
filed. The court bent over backwards to work with the prosecution on the
discovery issue. The State refused to cooperate, standing firm on its policy
position that it had no duty, that the issue was solely between Defendant and
the officer, and Defendant had the full burden to subpoena the officer’s cell
phone records to bring the matter before the court. The court’s frustration was
reasonable.
{45} The fifth point
essentially centers on the State’s argument that Officer Boerth would not
produce the records, and the court’s order therefore placed the State in an
untenable position. However, contrary to the State’s implications, Officer
Boerth did not state in his affidavit that he refused to allow the State to
review the records. The State did not show in the district court that the
officer refused to allow the State to review the records. The court wanted to
know from the State whether the cell phone records were relevant or
confidential, and gave the State every opportunity to ascertain that
information and present it to the court. The court offered in camera review.
The State refused to take any step in any regard.
{46} In addition, the
State’s position here suffers from the same defect as to which the fourth point
suffers resulting in the same absurd result as discussed earlier in this
opinion. Furthermore, the State’s position flies in the face of the embedded
prosecution-team doctrine, in the face of the prosecution’s clear duty to
investigate and to turn over evidence favorable to Defendant’s case, in the
face of a clear, mandatory criminal disclosure rule, and in the face of the
fair-trial and due-process rights of a defendant. We see no basis on which the
State is permitted to assert an officer’s privacy right to excuse the State
from investigating the relevance and materiality to the defense of an on-duty,
investigating officer’s cell phone records within the State’s control. We see
no basis on which the State is excused from producing documents, in camera or
otherwise, or acting to protect production based on relevancy or
confidentiality, where, as here, the defense makes a rational, logical,
threshold showing of control, materiality, and prejudice. None of the State’s
privacy arguments are persuasive, and none of its cited authorities relating to
privacy are on point, analogous, or persuasive.
{47} The State asserts
that 18 U.S.C. § 2703 in the federal Electronic Communications Privacy Act
applies. Section 2703 pertains to records of a provider of service, not a
customer. The State wholly fails to specifically explain how any aspect of that
Act is applicable to the circumstances here. There exists no indication in the
court record that the court ordered the prosecution to obtain records or
information from a service provider. We hold that the federal Act has no
application here.
III. The
State’s Sixth and Final Point
{48} The State’s final
point is that our Supreme Court’s unexplained denial of the petition for a writ
of mandamus was not res judicata or law of the case. The State asserts that
remarks the district court made strongly suggest that it improperly considered
the Supreme Court’s unexplained denial of the State’s petition to be a ruling
on the merits. The State argues that the court’s accusation of bad faith
against the prosecutor indicated its belief that the prosecutor was under a
duty to comply with the Supreme Court’s implied ruling.
{49} The State correctly
asserts that the Supreme Court’s denial of the petition was not a decision on
the merits.
See Rule
12-504(C)(2) NMRA (providing that the Court may
deny a petition without hearing if it “is without merit, concerns a matter more
properly reviewable by appeal, or seeks relief prematurely”);
State v. House,
1999-NMSC-014, ¶ 25,
127 N.M. 151,
978 P.2d 967 (stating that denial of
petition for a writ of superintending control “does not necessarily reflect
upon the merits”). However, we do not agree with the State’s interpretation of
the district court’s comments. And even were we to agree, we would still uphold
the court’s dismissal on other grounds.
See State v. Danek,
117 N.M.
471, 480,
872 P.2d 889, 898 (Ct. App. 1993) (indicating that if it is apparent
from the record that the district court dismissed on one of several alternative
grounds, then affirmance is proper on appeal if any of those grounds was
proper);
cf. State v. Ruiz,
2007-NMCA-014, ¶ 38,
141 N.M. 53,
150
P.3d 1003 (filed 2006) (stating that as a general rule, we will uphold the
decision of a district court if it is right for any reason).
{50} We affirm the
district court’s order of dismissal with prejudice.
Topic Index for State v. Ortiz, No. 27,544
CA-DD Deposition and
Discovery
CA-MP Misconduct by
Prosecutor
EV-SU Suppression of Evidence