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State v. Verret

Court of Appeals of New Mexico

October 23, 2018

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
AUSTIN VERRET, Defendant-Appellant.

          APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY Fernando R. Macias, District Judge.

          Hector H. Balderas, Attorney General Eran Sharon, Assistant Attorney General Santa Fe, NM for Appellee

          Cardenas Law Firm, LLC Christopher K.P. Cardenas Las Cruces, NM for Appellant

          OPINION

          DANIEL J. GAELEGOS, JUDGE.

         {¶1} Defendant Austin Verret filed a motion in Dona Ana County Magistrate Court to exclude the arresting officer from testifying at his trial for aggravated driving while under the influence of intoxicating liquor or drugs (DWI), based on Defendant's inability to secure a pretrial witness interview with the officer. The magistrate court granted the motion and excluded the officer from testifying. In response, the State filed a nolle prosequi in magistrate court and refiled Defendant's case in district court pursuant to State v. Heinsen, 2005-NMSC-035, 138 N.M. 441, 121 P.3d 1040. Defendant then requested that the district court conduct an independent review of his pretrial motion to exclude the arresting officer in accordance with City of Farmington v. Pinon-Garcia, 2013-NMSC-046, 311 P.3d 446. The district court, noting that Pinon-Garcia involved an appeal from an order of dismissal, concluded that the requirement for an independent review of the pretrial motion filed in the lower court does not apply to a case where the state refiles the charges in district court. Instead, the district court decided the motion anew based on the facts as they existed in the district court. For the reasons that follow, we conclude that the district court erred in concluding that Pinon-Garcia does not apply to a Heinsen refiling. Consequently, we reverse and remand to the district court for an independent determination of the motion to exclude as filed in the magistrate court.

         BACKGROUND

         {¶2} Defendant was charged with one count of aggravated DWI in magistrate court. Prior to trial, Defendant repeatedly requested a witness interview with the arresting officer, Brad Lunsford, but to no avail. At one point, an interview with Officer Lunsford was scheduled, but the officer cancelled on the day of the interview.

         {¶3} Based on the multiple failed attempts to interview Officer Lunsford, Defendant filed a motion to exclude the officer from testifying at trial. The magistrate court reserved its ruling on the motion until the day jury selection was set to occur. However, the magistrate court did enter an order requiring the State to provide the witness interview with Officer Lunsford by the day of jury selection. When that day came, Defendant still had not had the opportunity to interview Officer Lunsford. Defendant renewed his motion to exclude the officer from testifying, and the magistrate court granted it.

         {¶4} Instead of proceeding to trial, the State filed a nolle prosequi in magistrate court and refiled Defendant's case in district court. The refiled complaint indicated that "[u]nder Rule 6-5 06 [(A)] NMRA, and pursuant to ... Heinsen ... the State is exercising its discretion to have this matter heard in a court of record to remedy an order of suppression." In response, Defendant filed a motion in district court to dismiss. Then, after the district court denied the motion, Defendant filed a motion" for reconsideration. In his motion for reconsideration, Defendant argued that the district court was required, pursuant to Pinon-Garcia, 2013-NMSC-046, to make a de novo determination of whether the magistrate court's exclusion order-entered as a discovery sanction-was correctly issued based on the merits of the motion as they existed at the time the magistrate court entered the order. See id. ¶ 1 (concluding that on appeal, "the district court must make an independent determination of the merits" of a pretrial motion filed in a court not of record). The district court concluded in its order denying Defendant's motion for reconsideration that "[b]ecause this case is not an appeal but is a refiling, the [d]istrict [c]ourt's role is not to pass upon the merits of the lower court's decision but to determine whether the motion, raised and filed in [d]istrict [c]ourt, is meritorious now." The district court then denied the motion because Defendant had evidently interviewed Officer Lunsford following the refiling in district court. Defendant subsequently entered a conditional plea agreement in which he pled no contest to a lesser DWI charge and reserved the right to appeal the district court's denial of his motion to reconsider.

         DISCUSSION

         {¶5} Defendant argues that the district court erred by failing to consider the events as they unfolded in magistrate court in making its decision on his motion for reconsideration, as required by Pinon-Garcia. See id. ¶ 21 (holding that "the district court should have made an independent determination regarding the validity of the [lower] court's order of dismissal based on the record on appeal and the arguments of counsel at the district court level"). For its part, the district court predicated its ruling on its conclusion that Pinon-Garcia, which involved an appeal from an order of dismissal, does not apply to a case where the state refiles the charges in district court. Defendant, however, points out that the State refiled the criminal complaint in district court, pursuant to Heinsen, 2005-NMSC-035, in order to receive review of the magistrate court's exclusion ruling. See id. ¶ 1 (recognizing that "the [s]tate may obtain judicial review of ... a suppression order by filing a nolle prosequi to dismiss some or all of the charges in a magistrate court after the suppression order is entered and refiling in the district court for a trial de novo").[1] The question for this Court, then, is whether the Pinon-Garcia requirement for an independent determination of the merits of a pretrial motion filed in the lower court applies in the context of a district court refiling under Heinsen.

         I. Standard of Review

         {¶6} "A court's jurisdiction derives from a statute or constitutional provision." State v. Rudy B., 2010-NMSC-045, ¶ 14, 149 N.M. 22, 243 P.3d 726. Likewise, the. right to appeal is a matter of substantive law created by constitution or statute. State v. Armijo, 2016-NMSC-021, ¶ 19, 375 P.3d 415. "We review issues of statutory and constitutional interpretation de novo." Id. (internal quotation marks and citation omitted). We also review de novo the district court's application of the law to the facts of the case. State v. Foster, 2003-NMCA-099, ¶ 6, 134 N.M. 224, 75 P.3d 824.

         II. District Court Review of a Potentially Dispositive Discovery Sanction Entered in Magistrate Court ...


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