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State v. Nehemiah G.

Court of Appeals of New Mexico

March 9, 2018

STATE OF NEW MEXICO, Plaintiff-Appellant,
NEHEMIAH G., Child-Appellee.


          Hector H. Balderas, Attorney General Santa Fe, NM John J. Woykovsky, Assistant Attorney General Albuquerque, NM for Appellant

          Bennett J. Baur, Chief Public Defender J.K. Theodosia Johnson, Assistant Appellate Defender Santa Fe, NM for Appellee



         {¶1} During the night of January 18-19, 2013, when he was fifteen years old, Defendant Nehemiah G. (Child) killed his father, mother, and three younger siblings. He was indicted on five counts of first-degree murder and three counts of intentional child abuse resulting in the death of a child under age twelve. In October 2015, Child pleaded guilty to two counts of second-degree murder and, as charged, three counts of intentional child abuse resulting in death. Pursuant to NMSA1978, Section 32A-2-20 (2009), the district court conducted an amenability hearing over the course of seven days in January and February 2016. At the conclusion of the hearing, the court found that "the State failed to prove by clear and convincing evidence that [Child] is not amenable to treatment or rehabilitation as a child in available facilities, " and accordingly committed him to the custody of the New Mexico Children, Youth and Families Department (CYFD) until his twenty-first birthday (occurring March 20, 2018). The State has appealed the amenability determination. Because we determine that the district court abused its discretion by (1) insufficiently considering and failing to make proper findings regarding each of the seven statutory factors upon which the amenability determination rests, (2) misinterpreting precedent to conclude that the first four statutory factors related to the commission of the crime were of lesser or no applicability to that ultimate determination, and (3) arbitrarily disregarding uncontradicted expert testimony that indicated Child would not be rehabilitated by his twenty-first birthday, we reverse and vacate the district court's amenability determination, and remand for rehearing.


         {¶2} We begin by summarizing the testimony given at the hearing concerning the circumstances of Child's personal life, including his maturity, his situation at home, his social and emotional health, and the facts concerning the commission of the crimes. At the time of the killings, Child lived in a house in Bernalillo County with his parents, Greg G. (Greg) and Sarah G. (Sarah), his nine-year-old brother, Z.G., and his two younger sisters, five-year-old J.G. and two-year-old A.G. The family was involved with and frequently attended church together at Calvary Chapel in Albuquerque, New Mexico. Child met his girlfriend, twelve-year-old A.W., at Calvary Chapel. He played in the church band, and his hobbies included skateboarding and video games, namely a World War II game called "Call of Duty." Child had always been home schooled. His mother taught him, but Child said that his studies had also been largely "self-directed" because his mother was too busy. Child said he planned to get a GED and to join the military when he turned eighteen. He claimed that he had used marijuana every few weeks since he was about twelve years old, which he got from his friends at church.

         {¶3} Child described his mother as generally quiet, but she yelled at him at home. He said that she was always upset with him and his siblings, constantly angry or depressed, and she rarely smiled. Child said that she was verbally abusive to him nearly every day and had told him that she regretted his birth and wished she could stone him to death. Child also said that when she was especially mad, about once each month, she hit the children with a belt.

         {¶4} Child's father, Greg, grew up Catholic but later became involved with gangs. He renewed his faith after spending time in jail, became a Christian pastor, and held a ministry at the Metropolitan Detention Center in Albuquerque, New Mexico. Greg purportedly told Child that before re-converting to Christianity and while he was part of a gang, he was in and out of jail a few times and had last been arrested for a drive-by shooting. Greg worked at Calvary Chapel for a period of time, but lost his job there in 2012. The family had financial difficulties, and Greg began working the night shift at the Rescue Mission. Child said that he and his father occasionally shot guns together. Greg was worried about intruders attacking the family when he worked the night shift, so he kept guns at the house for purposes of protecting the family, and gave Child orders to stay up and patrol the property at night. Greg was hard on Child and Child recalled that when he was twelve years old he lost consciousness after being in a fight with his father.

         {¶5} The morning of January 18, 2013, Child communicated to his girlfriend his thoughts about committing the crimes and said that he wanted to see her despite his parents preventing him from doing so. Sarah yelled at Child frequently that day and he felt irritated. He said he played "Call of Duty" for a couple of hours in the late afternoon, but he spent from 5:00 p.m. to 10:00 p.m. in his mother's room with her. Child said that around 11:50 that evening, he had become increasingly angry and he decided that he would proceed with a plan to kill his mother, who by then had fallen asleep with Z.G. in her bedroom. Child retrieved a gun from the closet in her bedroom and shot her in the head two times. Child said that he shot her from about fifteen feet away and that he expected to kill her when he shot. Z.G. went to get tissues to clean up his mother's blood. When Z.G. returned, Child said to him "you're next" and shot Z.G. once in the head. Child claimed that he never liked Z.G. and that Z.G. had once threatened to kill him. Child then proceeded down the hall to find his sisters, who were crying, and shot both of them. Child said that he was certain they were dead after he shot them. Child recalled thinking that his father was a larger person and that he would need a more powerful gun to kill his father when he returned home from working a night shift. He retrieved his father's AR-15 rifle, shot his sister's lifeless body once more to see how loud the gun sounded, and went downstairs to wait for his father to return. Child waited in the bathroom for several hours until he heard his father walk by the door. When his father arrived, Child stepped out and shot him four times in the back, then walked closer to his father's body and shot him in the head.

         {¶6} Both before and after the killings, between 11:20 p.m. on January 18, 2013 and 9:20 p.m. on January 19, 2013, Child and his girlfriend, A.W., exchanged text messages regarding a plan to kill their respective parents. Child also texted A.W. a picture of his mother and brother after he killed them, and much later, after having waited several hours for his father to return before killing him, Child told A.W. that he had killed him, too. They then arranged to meet at Calvary Chapel.

         {¶7} Child was arrested on January 20, 2013. As stated, he was indicted on five counts of first-degree murder and three counts of intentional child abuse resulting in the death of a child under twelve years of age. Nearly three years later, Child pleaded guilty to two counts of second-degree murder, contrary to NMS A1978, Section 3 0-2-1 (A)(1) (1994), for the deaths of his mother and father, and three counts of intentional child abuse resulting in the death of a child under twelve years of age, contrary to NMSA 1978, Section 3 0-6-1(D) (2009), for the deaths of his brother and two sisters. The district court subsequently found that the State had failed to establish that Child was not amenable to treatment or rehabilitation, and entered a judgment committing Child "to the custody of [CYFD] to be confined until he reaches the age of twenty-one (21) unless sooner discharged." Child was nineteen years old at the time of disposition, and therefore his juvenile sanction amounted to confinement for a duration of approximately two years. The State appeals from the amenability finding which allowed the imposition of juvenile sanctions rather than an adult sentence.


         {¶8} This appeal presents two issues: (1) Does the State have the right to appeal the amenability finding, and (2) Did the district court abuse its discretion in making that finding? We conclude that the State has the right to appeal from the amenability order, and that the district court abused its discretion by making the amenability finding.

         A. The State Has a Statutory Right to Appeal

         {¶9} As an initial matter we address whether this Court has jurisdiction over the State's appeal from the determination of the district court on Child's amenability to treatment in juvenile facilities. The State argues that it has both a statutory and constitutional right to appeal under NMSA 1978, Section 32A-1-17 (1999), NMSA 1978, Section 39-3-2 (1966), and Article VI, Section 2 of the New Mexico Constitution.

         {¶10} We first examine the State's statutory arguments. Section 32A-1-17(A) of the Children's Code, NMSA 1978, §§ 32A-1-1 to -25-5 (1993, as amended through 2015), provides that "[a]ny party may appeal from a judgment of the court to the court of appeals in the manner provided by law." Neither party disputes that the district court's ruling resulted in a final judgment for purposes of appeal, and we agree that the judgment is final because all issues of law and fact have been determined and the case has been disposed of by the district court to the fullest extent possible. See Zuni Indian Tribe v. McKinley Cty. Bd. of Cty. Comm 'rs, 2013-NMCA-041, ¶ 16, 300 P.3d 133. There is also no question that the State is a party to the case, so whether the State has a right to appeal turns on whether its appeal is "in the manner provided by law." Section 32A-1-17(A).

         {¶11} The State argues that Section 32A-1-17(A) itself creates a right to appeal, and that it appealed "in the manner provided by law" because it followed Rule 12-201 NMRA, Rule 12-202 NMRA and Rule 12-208 NMRA. Our previous cases, however, have not interpreted Section 32A-1-17 as creating a right to appeal from Children's Code proceedings, and have instead interpreted it as requiring us to look to other statutes or to the New Mexico Constitution to determine whether an appeal is authorized. For example, mln re Doe, 1973-NMCA-141, 85N.M. 69l, 5l6P.2d2Ol, we considered the predecessor statute to Section 32A-1-17, which also provided that appeals could be taken "in the matter provided by law[, ]" and concluded that it required us to determine whether the appeal in that case was "authorized by law." In re Doe, 1973-NMCA-141, ¶ 3. We then held that another statute authorized the appeal. Id. ¶¶ 4-5. Both we and our Supreme Court have reached similar conclusions in other cases. See State v. Jade G., 2007-NMSC-010, ¶¶ 1, 9-14, 141 N.M. 284, 154 P.3d 659 (allowing appeal by the state from a suppression order in a Children's Code case under NMSA 1978, Section 39-3-3(B)(2) (1972)); In re Christobal V., 2002-NMCA-077, ¶¶ 1, 8, 132 N.M. 474, 50 P.3d 569 (holding that the State had the right to appeal from a delinquency proceeding because it was an "aggrieved party" under Article VI, Section 2 of the New Mexico Constitution). Accordingly, we hold that Section 32A-1-17 does not create a right to appeal. A right to appeal, if it exists, must be based on some other statute, or on the state constitution.

         {¶12} The State also argues that delinquency proceedings are considered civil rather than criminal proceedings and, therefore, it may appeal from the children's court's order under Section 39-3-2. Section 39-3-2 governs civil appeals from district court, and provides that any party aggrieved may appeal "from the entry of any final judgment or decision, any interlocutory order or decision which practically disposes of the merits of the action, or any final order after entry of judgment which affects substantial rights[.]"

         {¶13} The State cites no case which applies Section 39-3-2 to a juvenile delinquency proceeding, and we are not aware of any that do. Although we have applied NMSA 1978, Section 39-3-4 (1999), the statute authorizing interlocutory appeals from civil and special statutory proceedings, to delinquency proceedings, we did so because i delinquency proceedings are special statutory proceedings, not on the ground that they are civil proceedings. See In re Doe, 1973-NMCA-141, ¶¶ 3-5 (holding that the predecessor statute to Section 39-3-4 authorized interlocutory appeal from juvenile proceeding that was itself statutorily authorized by the Delinquency Act). Gur holding in In re Doe is consistent with a long line of opinions from our Supreme Court describing juvenile delinquency proceedings as special statutory proceedings (which are also known as "special proceedings"). Cf. State v. Florez, 1931-NMSC-068, ¶ 4, 36 N.M. 80, 8 P.2d 786 (recognizing that a proceeding sentencing minors who pleaded guilty to larceny was a statutory and special proceeding); In re Santillanes, 1943-NMSC-011, ¶ 20, 47 N.M. 140, 138 P.2d 503 ("That the juvenile delinquency act deals with special cases and sets up special proceedings, we do not doubt."); State v. Acuna, 1967-NMSC-090, ¶ 9, 78 N.M. 119, 428 P.2d 658 (acknowledging holding of Florez that juvenile proceedings are 'special statutory proceedings' as opposed to criminal proceedings) (citation omitted); State v. Jones, 2010-NMSC-012, ¶ 13, 148 N.M. 1, 229 P.3d 474 (stating that an amenability hearing is a "special proceeding").

         {¶14} Because proceedings under the Children's Code are special statutory proceedings, we hold that the State has a right to appeal under NMSA 1978, Section 39-3-7 (1966), which provides that any aggrieved party may appeal "the entry of any final judgment or decision, . . . or any final order after entry of judgment which affects substantial rights, in any special statutory proceeding in the district court[.]" See also NMSA 1978, § 32A-1-5 (1993) (establishing the children's court as a division of the district court). Though neither party discussed the applicability of Section 39-3-7 to this case, their failure to bring it to our attention does not bar us from considering it, because the issue involves this Court's appellate jurisdiction. See State v. Morris, 1961-NMSC-120, ¶ 2, 69 N.M. 89, 364 P.2d 348 ("The fact that the jurisdictional question is not raised by the parties is of no consequence."); William K. Warren Found, v. Barnes, 1960-NMSC-069, ¶¶ 7-8, 67 N.M. 187, 354 P.2d 126. (noting that jurisdiction cannot be conferred by the parties through waiver or consent).

         {¶15} Having concluded that S ection 3 9-3 -7 is the appropriate statute to apply to the present case, we must determine whether the State is an "aggrieved" party. See § 39-3-7 (stating that "any party aggrieved may appeal" from a final judgment in a special statutory proceeding in district court). "An 'aggrieved party' means a party whose interests are adversely affected." Christobal V., 2002-NMCA-077, ¶ 8 (citation omitted). "The [s]tate is aggrieved by a disposition contrary to law[.]" Id.; cf. State v. Aguilar, 1981-NMSC-027, ¶¶ 5-7, 95 N.M. 578, 624 P.2d 520 (agreeing that the state was an "aggrieved party" "where it alleges a disposition contrary to law in a criminal proceeding" and also noting that the state has a "strong interest in the enforcement of its statutes"). As set forth more fully below, we find that the district court's disposition of this case was "contrary to law" because it failed to make the findings required under Section 32A-2-20(C), misinterpreted our Supreme Court's precedent, and its decision to arbitrarily disregard unanimous expert testimony "adversely affected" the State's "strong interest in the enforcement of its statutes." Aguilar, 1981-NMSC-027, ¶¶ 5-7; Christobal V., 2002-NMCA-077, ¶ 8. Accordingly, we conclude that the State has a right to appeal the district court's amenability determination under Section 39-3-7.

         {¶16} Having held that the State has a right to appeal because this proceeding is a special statutory proceeding, we need not discuss the State's argument that it has a constitutional right to appeal. See Allen v. LeMaster, 2012-NMSC-001, ¶ 28, 267 P.3d 806 ("It is an enduring principle of constitutional jurisprudence that courts will avoid deciding constitutional questions unless required to do so." (internal quotation marks omitted)).

         B. Abuse of Discretion

         {¶17} We turn to the substance of the State's appeal, whether the district court abused its discretion in finding that the State had failed to prove that Child was not amenable to treatment. We begin by discussing the Delinquency Act, NMSA 1978, §§ 32A-2-1 to -33 (1993, as amended through 2016), with some specificity, because our analysis hinges on the district court's application of the Act's provisions to the testimony taken during Child's amenability hearing. We then review in detail the testimony presented at the amenability hearing and the district court's decision. Finally, we explain our conclusion that the district court abused its discretion.

         1. Governing Law

         {¶18} Section 32A-2-3(C), (H), and (J) of the Delinquency Act, establishes three classes of juvenile offenders, the last two of which are relevant to Child: delinquent offenders, serious youthful offenders, and youthful offenders, see State v. Gonzales, 2001-NMCA-025, ¶ 16, 130N.M. 341, 24P.3d776 (explaining that "the Legislature created three 'classes' of juvenile offenders: serious youthful offenders, youthful offenders, and delinquent offenders"), overruled on other grounds by State v. Rudy B., 2009-NMCA-104, 147 N.M. 45, 216 P.3d 810. The categories have important consequences because a child's placement in one of them determines the potential post-adjudication consequences that the child will face. Jones, 2010-NMSC- 012, ¶ 10. This categorization "reflect[s] the rehabilitative purpose of the Delinquency Act, coupled with the realization that some juvenile offenders cannot be rehabilitated given the limited resources and jurisdiction of the juvenile justice system." Gonzales, 2001-NMCA-025, ¶ 16. Serious youthful offenders, children fifteen to eighteen years old charged with committing first-degree murder, "are excluded from the jurisdiction of the children's court unless found guilty of a lesser offense." Id; Section 32A-2-3(H). Serious youthful offenders are, therefore, tried and sentenced as adults in district court. See § 32A-2-6(A); Jones, 2010-NMSC-012, ¶ 11 ("Once charged with first-degree murder, a serious youthful offender is no longer a juvenile within the meaning of the Delinquency Act, and therefore is no longer entitled to its protections. As a result, serious youthful offenders are... automatically sentenced as adults if convicted.") (citation omitted); see also Gonzales, 2001-NMCA-025, ¶ 16 (explaining that "the Legislature has determined that serious youthful offenders cannot be rehabilitated using existing resources in the time available" given "the age of these offenders and the seriousness of the offense, including the requisite intent").

         {¶19} Based on the indictment, Child was initially classified as a serious youthful offender, and therefore if convicted would have been automatically subject to adult sentencing. However, because Child pleaded guilty to second-degree murder and intentional child abuse resulting in the death of a child under twelve years of age, he is classified as a youthful offender. Youthful offenders are children fourteen to eighteen years old who are adjudicated guilty of at least one of twelve enumerated felonies, including second-degree murder as provided in Section 30-2-1 and child abuse resulting in death as provided in Section 30-6-1. See § 32A-2-3(J)(1)(a), (m). Youthful offenders "potentially face either juvenile or adult sanctions, depending on the outcome of a special proceeding after adjudication known as an amenability hearing." Jones, 2010-NMSC-012, ¶ 13.

         {¶20} At the amenability hearing, the parties may present evidence regarding, and the district court "shall consider" the following factors:

(1) the seriousness of the offense;
(2) whether the ... offense was committed in an aggressive, violent, premeditated ...

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