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State ex rel. Torrez v. Whitaker

Supreme Court of New Mexico

January 11, 2018

STATE OF NEW MEXICO ex rel. RAÚL TORREZ, Second Judicial District Attorney, Petitioner,
HON. STAN WHITAKER, Respondent, PAUL SALAS and MAURALON HARPER, Real Parties in Interest.


          Office of the Second Judicial District Attorney Presiliano Raúl Torrez, District Attorney Kevin P. Holmes, Assistant District Attorney Albuquerque, NM for Petitioner

          Hector H. Balderas, Attorney General Joshua Rutledge Granata, Assistant Attorney General Santa Fe, NM Jones, Snead, Wertheim & Clifford, P.A. Jerry Todd Wertheim Santa Fe, NM for Respondent

          Jason Benjamin Wheeless Steven P. Archibeque Albuquerque, NM for Real Party in Interest Paul Salas

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

          Jeff Rein, Assistant Public Defender Albuquerque, NM for Real Party in Interest Mauralon Harper

          Hector H. Balderas, Attorney General Kenneth H. Stalter, Assistant Attorney General Santa Fe, NM for Interested Party


          CHARLES W. DANIELS, Justice

         {1} One of the most significant new tools provided to the New Mexico criminal justice system as a result of the amendment to the bail provisions in Article II, Section 13 of the New Mexico Constitution, approved by the New Mexico Legislature in February 2016 and passed by New Mexico voters in the November 2016 general election, is the judicial authority to deny pretrial release-for any amount of money-if a prosecutor shows by clear and convincing evidence that no release conditions a court could impose on a felony defendant would reasonably protect the safety of any other person or the community.

         {2} In this case, we have been requested to address the nature of evidentiary presentation required by this new detention authority. We agree with courts in all other federal and state bail reform jurisdictions that have considered the same issues, and we hold that the showing of dangerousness required by the new constitutional authority is not bound by formal rules of evidence but instead focuses on judicial assessment of all reliable information presented to the court in any format worthy of reasoned consideration. The probative value of the information, rather than the technical form, is the proper focus of the inquiry at a pretrial detention hearing.

         {3} In most cases, credible proffers and other summaries of evidence, law enforcement and court records, or other nontestimonial information should be sufficient support for an informed decision that the state either has or has not met its constitutional burden. But we also agree with other jurisdictions that a court necessarily retains the judicial discretion to find proffered or documentary information insufficient to meet the constitutional clear and convincing evidence requirement in the context of particular cases.


         {4} This case came before us on a petition for writ of superintending control filed by Second Judicial District Attorney Raúl Torrez. The petition sought to have this Court order Respondent District Judge Stan Whitaker to conduct new detention hearings in two specific cases, State v. Salas, D-202-LR-2017-67, and State v. Harper, D-202-LR-2017-68, and provide guidance on the nature of the evidence required in the pretrial detention hearings authorized by the 2016 constitutional amendment.

         {5} We first review the history of the two cases that are the subject of the petition.

         A. State v. Salas

         {6} Paul Salas was arrested on March 16, 2017, and charged in a single criminal complaint with forty-seven separate armed robberies of dozens of Bernalillo County businesses in a five-month period.

         {7} The complaint, prepared and signed under oath by the investigating police case agent, alleged the facts reported by the separate victims and noted that each of the robberies had been committed by a person fitting the physical description of Salas, who was dressed similarly, who brandished a firearm, and who otherwise exhibited the same modus operandi in each of the robberies; that surveillance video available in most of the robberies confirmed that the same robber, who walked with the same characteristic gait, appeared to be responsible; that in the most recent robbery, an electronic tracking device placed in the bag of stolen cash and merchandise allowed police to immediately chase down and arrest the fleeing Salas and a codefendant and retrieve the robbery proceeds and other evidentiary items; and that after his arrest Salas waived his Miranda rights and confessed to each of the forty-seven charged robberies in a lengthy debriefing with the case agent who had prepared the sworn criminal complaint, providing a detailed account of each admitted robbery that was consistent with the victim reports.

         {8} The day after Salas's arrest, the State filed a motion for pretrial detention. The motion contended that Salas's alleged five-month crime spree and the fact that he was a wanted fugitive from another state demonstrated "the ability to elude police and . . . an unwillingness to abide by law and cooperate [with] law enforcement." The motion stated that he "has shown a blatant disregard for the value of a human life and . . . a pattern for violence, " that because of the nature of his crimes Salas presented "a serious danger to the community, " and that there were no conditions "other than a no bond hold that would protect the safety of the public."

         {9} No probable cause determination had been made by a court or grand jury on any of the charged offenses by the time of the March 22, 2017, detention hearing, and the district court made no probable cause determination in connection with the detention hearing.

         {10} At the hearing on its detention motion, the State proffered the sworn criminal complaint in this case and a fugitive complaint on which Salas recently had been arraigned pending extradition to Arizona on a sex offense but called no live witnesses and introduced none of the underlying materials relied on by the case agent in preparing the robbery complaint.

         {11} Salas offered no affirmative or rebuttal information concerning the accuracy or truthfulness of the information presented to the district court by the State and did not challenge his identity as the Paul Salas reported in the complaint to have been pursued, arrested, searched, and interrogated.

         {12} Accordingly, the hearing consisted primarily of argument concerning the nature, reliability, and sufficiency of the form of documentary information offered by the State, with the defense arguing generally that the documentary evidence was insufficient to meet the State's clear and convincing evidence burden without a live witness to testify and be cross-examined about the documents' accuracy and reliability.

         {13} In oral and written rulings, Respondent denied the detention motion, refusing to admit the criminal complaint on the ground that it was deemed unreliable and violative of due process in the absence of corroborating or authenticating witnesses that the defense could cross-examine. After denying detention, Respondent ordered Salas to be placed on pretrial conditions of release that included close supervision, monitoring, and a cash-only bond of $100, 000, in addition to the $100, 000 cash-only bond that had been set earlier on the Arizona fugitive complaint and in addition to any other applicable money bonds.

         B. State v. Harper

         {14} Mauralon Harper was charged in a sworn criminal complaint with attempted murder, aggravated battery with a deadly weapon, shooting at a vehicle resulting in great bodily harm, and tampering with evidence.

         {15} The complaint alleged that Harper shot his girlfriend in the abdomen as she got into her car after arguing with Harper and ordering him out of her apartment. The investigating detective who executed the complaint reported that he joined other officers in responding to a report of a shooting at the victim's address. There they found several people attending to the bleeding victim as she lay on the ground. She was able to tell officers, "Mauralon shot me, " before being transported to the hospital for emergency surgery.

         {16} A neighbor who knew both Harper and the victim told police she had heard the two arguing, had heard the sound of gunshots and the victim screaming, and then saw Harper pointing a handgun toward the victim's car and the victim lying on the ground next to the car.

         {17} Another witness who knew and could identify Harper stated that moments after she heard the gunshots she observed Harper running from the scene with a gun in his waistband.

         {18} The investigating detective recited that he personally observed at least thirteen bullet holes in a car that was registered to the victim and parked at the scene and that the bullet holes and casing locations were consistent with the eyewitness accounts that Harper was standing in the area of the victim's apartment when he fired toward the victim's car.

         {19} The District Attorney's office filed a motion to detain Harper pending trial. As in the Salas case, no determination of probable cause by a court or grand jury had been made either before or during the detention hearing.

         {20} At the hearing, the prosecutor proffered the criminal complaint in support of the detention motion. The prosecutor also proffered court documents recording Harper's six prior convictions, including three felony convictions for bank robbery, assault on a police officer, and drug possession; documents reflecting three past domestic violence restraining orders against Harper obtained by three separate complainants; documents reflecting a pending robbery and evidence-tampering case in which Harper was currently being held without bond on a release revocation order for failure to appear; documents reflecting six past bench warrants for failure to appear; and a current district court pretrial services risk assessment that placed him in the highest risk category, calling for either intensive supervision or pretrial detention.

         {21} In addition to the documentary evidence, the State proffered a video and images of text messages from the victim's phone, which the prosecutor represented to contain evidence that corroborated the State's version of the charged offenses. Although the defense argued briefly that the unreliability of the State's documentary evidence, in the absence of live testimony, left open to question whether Harper was the same Mauralon Harper referenced in the documents, the defense never offered affirmative or rebuttal evidence or even denied that he was the person who had shot at his girlfriend, instead relying on objections to the admissibility and weight of the State's submissions.

         {22} Respondent denied the request for detention in oral and written rulings but then ordered Harper to be placed on multiple pretrial conditions of release that included close supervision, monitoring, and a secured bond in the amount of $100, 000.

         {23} In the oral bench ruling at the conclusion of the hearing, Respondent stated that he would not admit the video and text messages because the State did not provide a witness to testify to their authenticity and reliability and be available for cross-examination. While he stated in the oral ruling that he was admitting the criminal complaint and the other documents regarding Harper's criminal history over defense objections, in the subsequent written order Respondent recited that the contents of the criminal complaint were unreliable and therefore inadmissible and stated that the admission of the complaint's hearsay contents, "without more, would deprive the Defendant a meaningful opportunity to challenge the State's evidence, which is in violation of his right to due process of law."

         C. The Petition for Writ of Superintending Control

         {24} After Respondent denied the State's detention motions in Salas and Harper, Petitioner Torrez sought a writ of superintending control from this Court. Respondent, Defendants Salas and Harper, whom the petition named as real parties in interest, and the Attorney General filed separate responses to the State's petition, pursuant to Rule12-504(C) NMRA ("The respondent, the real parties in interest, and the attorney general may file a response to the petition [for an extraordinary writ].").

         {25} As framed in the petition, the controversy between the parties was a clash of absolutist positions that centered on whether the prosecution must always present live witnesses, as the petition alleged the Respondent was requiring, or whether live witnesses can never be required, as the petition seemed at times to contend. Petitioner asked this Court to order the district court to reconsider the State's motions for pretrial detention and to issue a written opinion providing guidance to inferior courts on how to interpret and apply the new pretrial detention provisions recently added to Article II, Section 13 of the New Mexico Constitution.

         {26} In his response to the State's petition, Respondent took the position that due process of law may require live witness testimony to satisfy confrontation rights at pretrial detention hearings and that in these two cases he did not abuse his judicial discretion in denying the State's motions for pretrial detention.

         {27} Salas and Harper argued that Respondent did not abuse his discretion to require live witnesses at a pretrial detention hearing when he found the exhibits and proffers insufficient to meet the State's burden of proof.

         {28} The Attorney General urged this Court to follow federal detention hearing precedents and hold that a court may rely on proffers and documents alone without violating the due process rights of an accused but to recognize that the court retains the discretion to require one or more live witnesses when there is a question about the credibility or authenticity of nonwitness information.

         {29} Following oral argument on the petition, this Court delivered an oral ruling from the bench granting the writ, providing guidelines for the evaluation of evidence in detention hearings, directing Respondent to conduct new hearings in light of those guidelines, and advising the parties that the Court would issue a full precedential opinion amplifying our oral ruling. This is that opinion.

         II.DISCUS ...

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