FROM THE DISTRICT COURT OF DONA ANA COUNTY Fernando R.
Macias, District Judge.
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
J. GAELEGOS, JUDGE.
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.
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.
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
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.
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"). 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.
Standard of Review
"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.
District Court Review of a Potentially Dispositive Discovery
Sanction Entered in Magistrate Court ...