STATE V. MARTINEZ, 2015-NMCA-013,
343 P.3d 194
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
JOSEPH MARTINEZ, Defendant-Appellee.
COURT OF APPEALS OF NEW MEXICO
2015-NMCA-013, 343 P.3d 194
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY,
Judith K. Nakamura, District Judge.
Released for Publication March 3, 2015.
Gary K. King, Attorney General, Santa Fe,
NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellant.
Bregman & Loman, P.C., Sam Bregman,
Eric Loman, Albuquerque, NM, for Appellee
M. MONICA ZAMORA, Judge. WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge, MICHAEL E. VIGIL, Judge.
AUTHOR: M. MONICA ZAMORA.
{1} The central issues
presented in this case are: (1) whether this Court can consider the State’s new
argument against suppression of the alleged victim’s testimony in light of the
procedural posture of the case, and (2) if so, did the district court err in
denying the State’s motion for reconsideration of the suppression order.
{2} Bernalillo County
Sheriff’s Deputies were dispatched to Defendant’s home in response to an
“open-line” static 911 call. The deputies entered the large rural home based on
the 911 call and what appeared to be a disheveled room behind an unlocked
sliding glass door. They did not find an active emergency but discovered drugs
and drug paraphernalia, as well as videos and photographs that appeared to be
child pornography. The deputies called the Bernalillo County Sheriff’s Office
to prepare a search warrant.
{3} In the meantime,
Defendant arrived home. He was transported from his home to the sheriff’s
office in downtown Albuquerque and questioned. Defendant admitted that the
drugs in the house were for personal use. He also admitted that he had dozens
of pornographic videos, some of which involved him engaging in sexual acts with
an underage male.
{4} Based on the
observations of the deputies conducting the search and on Defendant’s
statements, a search warrant was issued permitting the seizure of drugs and
drug paraphernalia, as well as videos and photographs containing child
pornography from Defendant’s residence. Pursuant to the warrant, deputies
seized camcorders, videos, photographs, marijuana, and drug paraphernalia.
{5} A review of the
seized evidence revealed ten VHS videos, twelve 8 mm videos, four mini DVDs,
and twenty-nine Polaroid photographs depicting a minor engaging in sexually
explicit conduct. Sheriff’s deputies conducted an investigation based on the
photographs found in Defendant’s home and Defendant’s statements, and were able
to identify the alleged victim (E.L.). E.L. was interviewed and disclosed
sexual abuse that had occurred for eleven years.
{6} Defendant was
arrested and indicted by a grand jury on forty-four counts of Criminal Sexual
Penetration of a Child; and one count each of Sexual Exploitation of a Child;
Possession with Intent to Distribute Marijuana; Possession of Drug Paraphernalia;
and Possession of Cocaine. Defendant was also indicted by a federal grand jury
on two counts of Production of a Visual Depiction of a Minor Engaged in
Sexually Explicit Conduct. The state and federal cases against Defendant
proceeded concurrently.
{7} After Defendant was
indicted in district court, he challenged the legality of the warrantless
search of his home and moved to suppress all evidence obtained as a result of
the search. After a hearing on Defendant’s motion, the district court found
that the search of Defendant’s home was illegal, and ordered suppression of all
physical evidence seized from his home and vehicle, all statements made by
Defendant to law enforcement agents, and the testimony of E.L.
{8} The State appealed
the suppression order to this Court. On appeal, the State argued that the
warrantless search of Defendant’s home was not illegal. The State also argued
that even if the search was illegal, Defendant’s statements and E.L.’s
testimony were sufficiently attenuated from the search to purge the taint of
the illegality, and should not be suppressed. This Court proposed to affirm
both the illegality of the search and the suppression of the evidence.
{9} As to the
suppression of E.L.’s testimony, we proposed to affirm because the district
court’s findings indicated that E.L. was identified and questioned based on
evidence and statements of Defendant that followed the illegal search, and
because the State did not explain how it proved to the district court that E.L.
would have independently contacted police, nor did the State describe an
intervening event or attenuation. The State did not oppose the proposed result,
however it did request that we clarify whether our affirmance would preclude
E.L. from testifying in future proceedings. In our memorandum opinion affirming
the suppression order, we clarified that we were not deciding what effect, if
any, the suppression order would have on E.L.’s right to testify in any future
proceeding.
State v. Martinez, No. 31,242, mem. op. (N.M. Ct. App. Mar.
28, 2012) (non-precedential).
{10} Meanwhile, Defendant
pleaded guilty to the charges in the federal indictment. In Defendant’s plea
agreement with the United States, he admitted that E.L. voluntarily disclosed
details of the years of sexual abuse he suffered at the hand of Defendant, and
that E.L. was willing to testify about the abuse at trial. The State then moved
for reconsideration of the district court’s suppression of E.L.’s testimony.
The State argued to the district court that when determining whether evidence
obtained as the result of an illegal search is sufficiently attenuated from the
illegality as to purge the taint and render the testimony admissible, under
United
States v. Ceccolini, 435 U.S. 268 (1978), the live testimony is analyzed
differently than other forms of evidence. To support this new argument, the
State offered new authority that was not considered in the first appeal. The
district court denied the State’s motion for reconsideration. This appeal followed.
{11} On appeal, the State
challenges the district court’s order denying its motion to reconsider
suppression of E.L.’s testimony, arguing that the district court erroneously
focused solely on the question of whether E.L. would have independently come
forward to police, prior to the time police searched Defendant’s home. We agree
with the State’s argument.
{12} Defendant does not
respond to the State’s arguments related to the suppression of E.L.’s
testimony. Instead, he argues that under the law of the case doctrine, this
Court’s prior affirmance of the suppression order, which included suppression
of E.L.’s testimony, is binding on the remainder of the proceedings in this
case, and precludes reconsideration.
A. The Law
of the Case Doctrine Does Not Preclude Reconsideration of the Suppression Order
{13} Generally, under the
law of the case doctrine, “a decision by an appeals court on an issue of law
made in one stage of a lawsuit becomes binding on subsequent [district] courts
as well as subsequent appeals courts during the course of that litigation.”
State
ex rel. King v. UU Bar Ranch Ltd. P’ship,
2009-NMSC-010, ¶ 21,
145 N.M.
769,
205 P.3d 816. However, “[a]pplication of this doctrine is a matter of
discretion and is not an inflexible rule of jurisdiction.”
State v. House,
2001-NMCA-011, ¶ 10,
130 N.M. 418,
25 P.3d 257.
{14} In
House, the
defendant appealed his DWI-related and reckless driving-related convictions and
the corresponding sentences.
Id. ¶¶ 1, 5. Our Supreme Court affirmed the
convictions and remanded for re-sentencing.
Id. ¶ 1. The defendant
appealed again to this Court, presenting new arguments related to his sentence.
Id. ¶¶ 1, 10. The state objected, arguing that the law of the case doctrine
foreclosed our ability to hear any argument not made on the defendant’s first
appeal.
Id. ¶ 10. Finding the state’s argument unpersuasive, we
concluded:
[T]he [law of the case] doctrine
traditionally applies only where a matter has been specifically ruled
upon in a prior and final appellate proceeding. . . . Neither this Court, nor
our Supreme Court, has passed upon any of the issues specifically
presented in this appeal, and while it would have been preferable for [the
d]efendant to have brought these claims in his prior appeal, the doctrine of
law of the case does not preclude our review.
Id. (emphasis added) (citations omitted).
{15} Similarly, it could
be argued here that the State could have and should have made its
Ceccolini argument
the first time suppression was addressed. It is worth noting that “the [law of
the case] doctrine leaves considerable discretion to appellate courts to
interpret what, precisely, the law of the case is[.]”
King,
2009-NMSC-010, ¶ 27. In its motion for reconsideration, the State presented the
district court with a new issue not specifically addressed by the previous
sitting district court or this Court on Defendant’s motion for suppression. We
have considered the merits of the parties’ arguments within a motion for reconsideration,
even where the motions were supported by new evidence, new arguments, or new
authority.
See State v. Gamlen,
2009-NMCA-073, ¶¶ 4-5,
146 N.M. 668,
213
P.3d 818 (permitting the defendant to make new arguments on a motion to
reconsider suppression).
{16} In the case before
us now, the State first advanced its
Ceccolini argument in its motion to
reconsider suppression. Defendant did not respond to this argument, rather, he
argued that the district court was bound by this Court’s affirmance in the
first appeal. At the hearing on the State’s motion for reconsideration, the
district court rejected Defendant’s assertion that it was bound by our
affirmance. We conclude that it was appropriate for the district court to
consider the State’s motion for reconsideration that was based on new argument
and new authority.
B. State’s
Motion to Reconsider Suppression
{17} On appeal, the State
argues that the district court erred in focusing solely on whether E.L. would
have independently contacted police. The district court found that, because the
State could not prove that E.L. would have independently contacted police, his
testimony was not sufficiently attenuated from the illegal search as to make it
admissible. The district court also noted that E.L’s willingness to testify was
irrelevant. As a result of its erroneous focus, the district court never
analyzed the applicability of
Ceccolini in this case.
{18} We have not yet
deviated from federal precedent as it pertains to the attenuation of illegally
obtained evidence as an exception to the exclusionary rule.
State v. Garcia,
2009-NMSC-046, ¶¶ 14, 23,
147 N.M. 134,
217 P.3d 1032 (following the “fruit of
the poisonous tree” and attenuation doctrines set forth in
Wong Sun v.
United States, 371 U.S. 471, 488 (1963) and
Brown v. Illinois, 422
U.S. 590, 603-04 (1975));
see also State v. Murry,
2014-NMCA-021, ¶ 33,
318 P.3d 180 (citing
Wong Sun, 371 U.S. at 488, for general suppression
principles). This Court has not specifically considered whether we will adopt
the
Ceccolini attenuation analysis of witness testimony, and we decline
to do so here.
See City of Las Cruces v. El Paso Elec. Co.,
1998-NMSC-006,
¶ 18,
124 N.M. 640,
954 P.2d 72 (“We avoid rendering advisory opinions.”).
While we are not deciding the applicability of
Ceccolini, we are
required to analyze it within the context of the State’s argument in support of
its Motion for Reconsideration and make the determination of whether there was
substantial evidence to support the district court’s decision.
{19} Motions to
reconsider suppression in criminal cases involve mixed questions of law and
fact.
See State v. Hicks,
2013-NMCA-056, ¶ 5,
300 P.3d 1183,
cert.
denied, 2013-NMCERT-004, 301 P.3d 858;
State v. Eric K.,
2010-NMCA-040, ¶ 14,
148 N.M. 469,
237 P.3d 771. Factual determinations by the
district court are reviewed “under a substantial evidence standard and legal
questions [are reviewed] de novo.”
Hicks,
2013-NMCA-056, ¶ 5 (internal
quotation marks and citation omitted).
{20} In
Ceccolini,
the United States Supreme Court included a lengthy discussion of the uniqueness
of live witness testimony compared to inanimate evidentiary objects, touching
directly on the concerns presented:
Witnesses are not like guns or
documents which remain hidden from view until one turns over a sofa or opens a
filing cabinet. Witnesses can, and often do, come forward and offer evidence
entirely of their own volition. And evaluated properly, the degree of free will
necessary to dissipate the taint will very likely be found more often in the
case of live-witness testimony than other kinds of evidence. The time, place
and manner of the initial questioning of the witness may be such that any
statements are truly the product of detached reflection and a desire to be
cooperative on the part of the witness. And the illegality which led to the
discovery of the witness very often will not play any meaningful part in the
witness’ willingness to testify.
Ceccolini, 435 U.S. at 276-77. The Court went on to
state that “[t]he fact that the name of a potential witness is disclosed to
police is of no evidentiary significance, per se, since the living witness is
an individual human personality whose attributes of will, perception, memory
and volition interact to determine what testimony he will give.” Id. at
277.
{21} Given this
distinction, the Court held that courts should be cautious to use the
exclusionary rule for the testimony of live witnesses, and admonished courts to
apply it with circumspection to determine its usefulness in any particular
context. The Court was particularly concerned with a situation in which the
“exclusion would perpetually disable a witness [who is not a putative
defendant] from testifying about relevant and material facts, regardless of how
unrelated such testimony might be to the purpose of the originally illegal
search or the evidence discovered thereby.”
Id. Under such
circumstances, the Court held that “since the cost of excluding live-witness
testimony often will be greater, a closer, more direct link between the
illegality and that kind of testimony is required.”
Id. at 278. Thus,
the significance of the State’s request that this Court clarify whether E.L.
was precluded from testifying in future proceedings.
{22} Applying these
principles to the facts of that case, the Court held that the witness’s
testimony, though causally related to the illegal search, had become
sufficiently attenuated because (1) the free will that the witness exhibited
made it more likely that she would eventually have come forth on her own,
see
id. at 276-77, 279; (2) the Supreme Court is less willing to exclude
live-witness testimony than to exclude inanimate documents or objects,
id.
at 277; (3) other illegally seized evidence was not used in questioning the
witness,
id. at 279; (4) “[s]ubstantial periods of time elapsed between
the time of the illegal search and the initial contact with the witness,” and
“between [the contact with the witness] and the testimony at trial,”
id.;
and (5) it did not appear that the officer conducted the illegal search with
the intent of seeking out evidence,
id. at 280.
{23} We agree with the
State that the district court’s focus was erroneous. Under
Ceccolini,
the likelihood that a testifying witness will be discovered through
independent, legal means is not determinative of attenuation, but rather is a
function of the witness’s willingness to testify.
See id. at 276 (“The
greater the willingness of the witness to freely testify, the greater the
likelihood that he or she will be discovered by legal means and, concomitantly,
the smaller the incentive to conduct an illegal search to discover the
witness.”). Here, the key considerations in determining attenuation of E.L.’s
testimony are: (1) whether E.L. will willingly testify against Defendant; and
(2) whether the purpose served by excluding E.L.’s testimony outweighs the cost
of forever precluding him from testifying against his abuser.
{24} The State had the
opportunity to present relevant evidence at the hearing on the motion for
reconsideration in support of its argument of the application of
Ceccolini
and specifically, E.L.’s willingness to testify, but failed to do so. State’s
counsel provided only information about E.L.’s alleged willingness to testify
included as an admission by Defendant, in Defendant’s federal plea agreement,
that E.L. was prepared to willingly testify about the abuse in federal court as
detailed in E.L.’s wife’s affidavit.
See also State v. Cochran,
1991-NMCA-051, ¶ 8,
112 N.M. 190,
812 P.2d 1338 (noting that “argument of
counsel is not evidence”).
{25} Defendant’s federal
plea agreement was not relevant to show that because E.L. was willing to
testify in the federal proceeding he was therefore willing to testify in the
state proceeding. Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
State v.
Gonzales,
2010-NMCA-023, ¶ 4,
147 N.M. 735,
228 P.3d 519 (alteration,
internal quotations and citations omitted). Rule
11-401 NMRA (2011) defines
relevant evidence as “evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or
less probable.” The State failed to tender relevant evidence to show E.L. was
also willing to testify in the state court proceedings so that the district
court could consider even the first of the
Ceccolini factors. The State
had the opportunity to present E.L.’s testimony, in person or by affidavit, to
show his willingness to testify, but chose not to do so. We conclude that the
district court appropriately denied the State’s motion for reconsideration.
{26} Based on the
foregoing, we affirm the district court’s order denying the State’s motion for
reconsideration.
MICHAEL D. BUSTAMANTE, Judge