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State of New Mexico v Lopez

Case No. 33,736 (NM S.Ct., Oct. 15, 2013)

Defendant’s motion for rehearing is granted. The opinion filed on August 29, 2013, is withdrawn and the following opinion, which further clarifies the scope of our holding regarding the only issue presented to the Court—whether the constitutional right of confrontation applies at a preliminary examination—is substituted in its place.

Under Article II, Section 14 of the New Mexico Constitution, a defendant may not be brought to trial for a serious criminal offense unless there first has been a determination of probable cause, either by a grand jury or by a judge at a preliminary examination. In this case we consider whether the full constitutional right of confrontation in criminal prosecutions applies at a pretrial probable cause determination. We hold that it does not, because the right of confrontation in Article II, Section 14 of the New Mexico Constitution, as with the right of confrontation guaranteed by the Sixth Amendment to the United States Constitution, applies only at a criminal trial where guilt or innocence is determined. We overrule the contrary precedent of Mascarenas v. State, 1969-NMSC-116, 80 N.M. 537, 458 P.2d 789, to the extent that it held otherwise.

I. BACKGROUND



Defendant Aquilino Lopez was stopped for speeding and arrested for driving with a suspended license. While performing a search incident to the arrest, the arresting officer discovered in Defendant’s pocket a clear bag containing a green leafy substance suspected by the deputy to be marijuana. During an inventory of the contents of Defendant’s car, officers discovered another bag containing a white powdery substance that they believed to be cocaine. Defendant was charged with possession of a controlled substance with intent to distribute, possession of marijuana, and driving with a suspended or revoked license.
 

 

Judge(s): Charles W. Daniels
Jurisdiction: New Mexico Supreme Court
Related Categories: Constitutional Law
 
Supreme Court Judge(s)
Richard Bosson
Edward Chávez
Charles Daniels
Petra Maes
Barbara Vigil

 
Trial Court Judge(s)
Grant Foutz

 
Appellant Lawyer(s) Appellant Law Firm(s)
Bennett Baur Office of the New Mexico Public Defender Department
Allison Jaramillo Office of the New Mexico Public Defender Department

 
Appellee Lawyer(s) Appellee Law Firm(s)
Gary King Office of the New Mexico Attorney General
Ralph Trujillo Office of the New Mexico Attorney General

 

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to have the charge and testimony interpreted to him in a language that he is a trial right, which does not apply to pretrial suppression hearings”). 9 did not acquire jurisdiction to hear the case because admission of the laboratory report a remnant of abandoned doctrine, whether the precedent has proved to be unworkable, attempts to show probable cause” because “it is settled law that jeopardy does not attach the right of confrontation is a trial right that does not apply to preliminary examinations); see between . . . things to be proved, as well as between the tribunals which determine [criminal petra jimenez maes, chief justice regarding the only issue presented to the court—whether the constitutional right of 2010-nmsc-045, ¶¶ 58-59, 149 n.m. 22, 243 p.3d 726 (holding that there is no right to a constitutional confrontation right was the only basis for defendant’s motion to dismiss or whetherchangingcircumstanceshavedeprivedthe precedent of its original justification, and {19} while the right of confrontation is a vitally important feature of our criminal justice holding that full confrontation rights do not apply in parole and probation revocation law under the new mexico constitution in light of the apparent conflict between the rendition.’ rule 11-1101(d)(2) nmra 1997. extradition hearings are not as factfinder and the prohibition against double jeopardy apply. see state v. rudy b., hearsay not admitted under a specific court rule, the scope of cross-examination, the right {28} it is so ordered. 7 a suspended license. while performing a search incident to the arrest, the arresting officer be cocaine. defendant was charged with possession of a controlled substance with intent to prosecutions applies at a pretrial probable cause determination. we hold that it does not, (holding that while the fourth amendment requires “a judicial determination of probable of probable cause, either by a grand jury or by a judge at a preliminary examination. in this the crime shall have been committed, which district shall have been mascarenas, decided almost thirty years before gomez when we adopted the interstitial overlapping protections, we apply an interstitial mode of analysis, which requires that we other than a right that must be honored at a criminal trial. see rivera, 2008-nmsc-056, ¶ characteristics.” state v. gomez, 1997-nmsc-006, ¶ 19, 122 n.m. 777, 932 p.2d 1. this marks and citation omitted). “if the right is protected by the federal constitution, then the in reed v. state ex rel. ortiz, 1997-nmsc-055, ¶ 49, 124 n.m. 129, 947 p.2d 86, be brought to trial for a serious criminal offense unless there first has been a determination docket no. 33,736 gary k. king, attorney general preliminary examination. the motion alleged that the magistrate had violated defendant’s ____________________________________ [t]he rules of evidence do not apply in ‘proceedings for extradition or the preliminary hearing.”); sheriff v. witzenburg, 145 p.3d 1002, 1005 (nev. 2006) n.m. 836, 192 p.3d 1213, which concluded that because the confrontation clause provides such preliminary examination. that as a result the district court did not have jurisdiction to proceed further in the case. the the accusation; to be confronted with the witnesses against him; to have cause as a prerequisite to extended restraint of liberty following arrest,” the united states less demanding and elaborate than the protections accorded the defendant at the trial itself”); {2} under article ii, section 14 of the new mexico constitution, a defendant may not our interstitial analysis, and then we will consider the stare decisis effect of overruling personally cross-examine the laboratory analyst who prepared the report. the motion argued issuance of an arrest warrant or a postarrest detention review). as with the right of confrontation guaranteed by the sixth amendment to the united states a trial right it does not apply in pretrial suppression hearings. see id. ¶ 13. we accepted the right . . . to be confronted with the witnesses against him.” there is therefore no textual {26} to the extent that it held otherwise, we explicitly overrule mascarenas and hold that 3 related to the charges against the accused. because a claimed violation of defendant’s state responded that neither the federal nor state constitution guarantees personal generallygovernproceedingsinpreliminaryexaminations,pursuanttorules11-101and11- determinations of probable cause for a search or arrest. we have refused to extend trial for trial in the district court. the interests at stake are of a lesser magnitude, the process due at a pretrial “hearing may be of the criminal prosecution at which such key procedural protections as the right to a jury cause to believe that defendant had committed the offenses charged and bound the case over {16} after the second paragraph, addressing grand jury proceedings that do not relate to jury of the county or district in which the offense is alleged to have been 52 (1987) (plurality opinion) (“[t]he right to confrontation is a trial right.”); barber v. page, because the right of confrontation in article ii, section 14 of the new mexico constitution, posttrial event, without regard for our rules of evidence or procedure, creating substantial marks and citation omitted). {23} beforereconsideringourownprecedent andovercomingthelegal stabilityprinciples constitutional law, and consistent with the law in most american jurisdictions, we hold that daniels, justice. criminal justice systems that would justify our treating the right of confrontation as anything rule “shall limit the right of a party to call witnesses to testify as to the matters covered in approach. mascarenas held that the new mexico constitution’s guarantee of personal {7} “questions of admissibility under the confrontation clause are questions of law, sentencing, granting or revoking probation, granting or revoking supervised release, and aquilino lopez, state constitutional claim is not reached.” id. the right of confrontation is guaranteed by the procedure jurisprudence. by reasoning that full confrontation rights must be afforded in all {12} where a defendant relies on the new mexico constitution as providing broader 6 {14} the confrontation clause of the united states constitution is contained in the sixth remand, we affirm the ruling of the district court. (concluding that the confrontation clause does not bar the use of hearsay to demonstrate id. (emphasis added). on the merits. see united states v. raddatz, 447 u.s. 667, 679 (1980) (holding that because state of new mexico, prosecute. justification for interpreting the two provisions inconsistently. jurisprudence and is of no current value to our courts”). 14 (observing that the right of confrontation is a “trial right”). in both systems, the trial is {5} defendant entered a special appearance in the district court and filed a motion to a. standard of review substances were cocaine and marijuana. as a result, the court determined there was probable criminal trials in which the guilt or innocence of the defendant is adjudicated. does not apply at preliminary probable cause determinations santa fe, nm probable cause determinations. 2. stare decisis does not require continued adherence to mascarenas right that does not apply to probable cause determinations in preliminary examinations. we the wording of the sixth amendment: “in all criminal prosecutions, the accused shall [enjoy] 151, 155 (1998); see also state v. guthrie, 2011-nmsc-014, ¶¶ 12, 43-44, 150 n.m. 84, 257 of the officers that the bags in defendant’s possession contained marijuana and cocaine. conduct by the defendant is sufficient to justify extradition. thus, the court confrontation clause objections, a written report of the new mexico department of public that attaches at the criminal trial, and not before. see pennsylvania v. ritchie, 480 u.s. 39, in admitting the laboratory report would have been harmless, given the opinion testimony report into evidence at the preliminary hearing without an opportunity for the defense to governing the conduct of criminal trials”). while rule 11-1101 does not exempt preliminary confrontation at pretrial probable cause hearings and, in the alternative, argued that any error p.3d 904 (overruling state v. phillips, 2006-nmca-001, 138 n.m. 730, 126 p.3d 546, and is withdrawn and the following opinion, which further clarifies the scope of our holding nothing in article ii, section 14 of the new mexico constitution requires affording the issues in this case, section 14—in language strikingly similar to that of the sixth procedural rights to defendants in state criminal prosecutions. its first paragraph addresses preliminary examinations conducted to determine probable cause to prosecute than it would extradition hearings. the issue in this case, of course, is not whether admission of the right of confrontation and that as a result of that denial he had not been afforded a lawful 1. interstitial analysis does not justify deviating from federal law confrontation applies at a preliminary examination—is substituted in its place. would make it any more reasonable to apply the full panoply of constitutional trial rights at {21} we therefore conclude that there are no principled reasons for departing from federal barbara j. vigil, justice pursuant to nmsa 1978, section 34-5-14(c) (1972) and rule 12-606 nmra, reciting that does not apply at preliminary probable cause determinations hearings, motions hearings, extradition hearings, sentencings, and every other pretrial and crawford v. washington, 541 u.s. 36, 68 (2004) (holding that the confrontation clause certification from the new mexico court of appeals ____________________________________ officers discovered another bag containing a white powdery substance that they believed to {22} this court has never reexamined mascarenas’s application of full confrontation textbook example of a precedent that should be overruled. it is an anomalous remnant of old (concluding that there is “[no] confrontation right at a preliminary examination”); state v. appealed his conviction to the new mexico court of appeals, arguing that the district court 1101(d)(3)(a) provides a number of other examples of pretrial proceedings that are not testimonial hearsay unless there had been a prior opportunity to cross-examine the original 1 and unnecessary logistical difficulties throughout the course of a criminal case. in cases implicating property and contract rights, and least important in cases involving (citation omitted), reversed on other grounds by new mexico ex rel. ortiz v. reed, 524 u.s. committed. {6} defendant subsequently enteredapleaofguiltytopossessionwith intent to distribute reliability approach to admissibility of out-of-court statements). however, the mascarenas {8} where the united states constitution and the new mexico constitution provide defendant-appellant. by the deputy to be marijuana. during an inventory of the contents of defendant’s car, swick, 2012-nmsc-018, ¶ 18, 279 p.3d 747, “justifiable reliance, which is most important declarant of the oral or written statements). edward l. chÁvez, justice of stare decisis, we must consider “such common-sense factors as whether the precedent is being unfairly frustrated, either before or after the alleged commission of the crimes that may governed by the rules, such as grand jury proceedings and proceedings for nonjury the only point at which guilt or innocence may be definitively determined and is the stage system, there are many important stages of a criminal prosecution, each with different analysis of a . . . controlled substance.” rule 6-608(b) further provides that nothing in the laboratory report violated our rules of evidence or procedure but whether the confrontation hearings, and the analysis in the more recent case of state v. rivera, 2008-nmsc-056, 144 4 allison h. jaramillo, assistant appellate defender ____________________________________ protection, our interstitial approach requires an interpretation of the new mexico producing its author for personal cross-examination violates the confrontation clause); {18} we also see no relevant structural differences between the federal and new mexico no person shall be held to answer for a capital, felonious or infamous be the focus of a pretrial probable cause determination. as we recently observed in state v. different interpretation of the overlapping rights is justified as a result of “a flawed federal rights to a preliminary examination, despite the significant developments in confrontation v. be to do so at grand jury determinations of probable cause to prosecute or pretrial {10} the court has based its stance on the differing purposes of pretrial hearings and trials amendment—catalogues a variety of procedural rights in its final paragraph: without an opportunity to face and personally question its author was a denial of defendant’s appear and defend himself in person, and by counsel; to demand the nature ____________________________________ 1101 nmra, admission of the laboratory report was permitted by this court’s rule 6- confrontation rights under both the sixth amendment to the united states constitution and proceedings and focusing on due process fairness concerns instead); jones v. murdoch, features of trial-type confrontation in warrant procedures, grand jury determinations, bail 3. state v. mascarenas is overruled which we review de novo.” id. ¶ 10 (internal quotation marks and citation omitted). whether to indict”); buzbee v. donnelly, 1981-nmsc-097, ¶ 16, 96 n.m. 692, 634 p.2d such report, nor affect the admissibility of any evidence other than this report.” the speedy and public trial, by an impartial jury of the state and district wherein analysis honors “the responsibility of state courts to preserve national uniformity in distribute, possession of marijuana, and driving with a suspended or revoked license. constitution does not require trial formalities for a judicial probable cause determination for {17} with regard to confrontation rights in particular,the new mexico constitution tracks clause jurisprudence. see, e.g., bullcoming v. new mexico, 131 s.ct. 2705, 2713, 564 u.s. {15} article ii, section 14 of the new mexico constitution also provides an array of prerogative to weigh the evidence before it as it sees fit in making an independent decision and unsound reasoning that is inconsistent with the principles underlying our criminal assess probable cause to prosecute, the magistrate court admitted, over defendant’s purposes. there is nothing in the structure or text of the new mexico constitution that is not intended to be a mini-trial . . . , and a defendant has no constitutional right to an stages of a criminal proceeding, mascarenas is an unworkable precedent that would require sixth amendment to the united states constitution, which in turn “is made obligatory on dismiss or, in the alternative, to remand the case to the magistrate court for another preliminary examination. the court of appeals certified the appeal directly to this court, crawford, 541 u.s. at 42, 68-69 (overruling ohio v. roberts, 448 u.s. 56 (1980), and its confrontation rights into pretrial probable cause determinations. see state v. randolph, 933 5 “[i]n any preliminary hearing” of “a written report of the conduct and results of a laboratory overrule the contrary precedent of mascarenas v. state, 1969-nmsc-116, 80 n.m. 537, 458 guilt as opposed to probable cause], and therefore a like difference in the quanta and modes opinion ii. discussion examinations from application of the new mexico rules of evidence, rule 11- the appeal raises an issue of substantial public interest and presents a significant question of in all criminal prosecutions, the accused shall enjoy the right to a {9} theunitedstatessupremecourtconsistentlyhas interpretedconfrontationas a right charles w. daniels, justice __, __ (2011) (holding that introduction of a forensic laboratory report at trial without for appellant ____________________________________ initiatory proceedings, including the preliminary determination of probable cause to amendment’s listing of procedural rights in “all criminal prosecutions.” 1244 (noting that grand juries have wide latitude to investigate criminal activity to determine 2009-nmsc-002, ¶ 24, 145 n.m. 473, 200 p.3d 523 (stating that it is “the grand jury’s the hearing functions simply to ascertain whether the evidence of criminal constitution that is consistent with our interpretation of its federal counterpart unless a probable cause and are “unrestrained by the technical, procedural and evidentiary rules sentencing hearing generally); state v. isaac m., 2001-nmca-088, ¶ 14, 131 n.m. 235, 34 crime unless on a presentment or indictment of a grand jury or information confrontation clause of the united states constitution. {25} there is no reasonable possibility of any person’s justified reliance on mascarenas the extent to which parties relying on the precedent would suffer hardship from its woinarowicz, 720 n.w.2d 635, 641 (n.d. 2006) (reiterating that the “right to confrontation article ii, section 14 of the new mexico constitution by admitting the forensic laboratory assistance of counsel for his defence. prohibits introduction at trial of testimony from a preliminary hearing or other forms of of the case presented to us, such as the right to subpoena defense witnesses, the use of 2 i. background {20} the majority of other states reject constitutional interpretations that would inject {27} we affirm defendant’s conviction and sentence. prosecute: to receive and review statements of adverse witnesses, and the right to review evidence probable cause and that “the hensel opinion does not reflect current confrontation clause preliminary examination before an examining magistrate, or having waived (“there is no constitutional right to allow the accused to confront witnesses against him at the states by the fourteenth amendment.” pointer v. texas, 380 u.s. 400, 403 (1965). iii. conclusion confrontation in criminal proceedings applies specifically to a probable cause determination certification to clarify whether the constitutional right to personal confrontation that is 8 discovered in defendant’s pocket a clear bag containing a green leafy substance suspected {24} for reasons we have already addressed in the interstitial analysis, mascarenas is a 608(a) nmra, which provides a specific exception to our hearsay rule for admissibility after a hearing, the district court denied defendant’s motion. {1} defendant’s motion for rehearing is granted. the opinion filed on august 29, 2013, may consider unsworn statements of absent witnesses as well as hearsay. necessary witnesses in his behalf, and a speedy public trial by an impartial development and application of fundamental rights guaranteed by our state and federal cases arising in the militia when in actual service in time of war or public pretrial, but instead attaches” only at the criminal trial). santa fe, nm first consider “whether the right being asserted is protected under the federal constitution.” cocaine, reserving the right to appeal the denial of his motion to dismiss or remand, 390 u.s. 719, 725 (1968) (“the right to confrontation is basically a trial right.”); cf. mascarenas. we begin our interstitial analysis by comparing the texts ofthe federal and state procedural and evidentiary rules, is not present in this case.” constitution, applies only at a criminal trial where guilt or innocence is determined. we ralph e. trujillo, assistant attorney general of proof required to establish them.”); gerstein v. pugh, 420 u.s. 103, 113-14, 120 (1975) opinion number: _________ plaintiff-appellee, nmca-059, ¶¶ 15-16, 106 n.m. 8, 738 p.2d 126. see rivera, 2008-nmsc-056, ¶ 22 we concur: compulsory process for obtaining witnesses in his favor, and to have the the green leafy substance was marijuana. although the new mexico rules of evidence confrontation rights to a variety of nontrial stages of criminal prosecutions. as we observed for appellee safety forensic laboratories concluding that the white powdery substance was cocaine and see also brinegar v. united states, 338 u.s. 160, 173 (1949) (“there is a large difference and cause of the accusation; to be confronted with the witnesses against him; {3} defendant aquilino lopez was stopped for speeding and arrested for driving with also, e.g., blevins v. tihonovich, 728 p.2d 732, 734 (colo. 1986) (“the preliminary hearing in all criminal prosecutions, the accused shall have the right to b. the federal sixth amendment right of confrontation is a trial right which u.s. const. amend. vi (emphasis added). constitutions. magistrate court also considered the expert opinions of two police officers that the two precedent was left in serious doubt in rivera, when we overruled state v. hensel, 1987- specifically do not reach out to address issues raised by defendant that are beyond the scope consistent with the conditional plea provisions of rule 5-304(a)(2) nmra. defendant a deviation is called for. id. ¶ 21 (internal quotation marks and citation omitted). understands; to have compulsory process to compel the attendance of clause overrides our rules in nontrial proceedings. not only personal attendance by laboratory analysts as in this case but more broadly all other holdings in mascarenas, which applied the confrontation clause to pretrial probable cause in a preliminary examination. see 1969-nmsc-116, ¶ 13. therefore we will first conduct constitutional confrontation rights at a pretrial hearing to determine probable cause to p.2d 789, to the extent that it held otherwise. grant l. foutz, district judge constitutions” while preserving the right to interpret our own constitution differently where jury as factfinder in a juvenile amenability hearing, just as there is no such right in a c. the new mexico constitution’s right of confrontation is a trial right that a.2d 1158, 1191 n.15 (conn. 2007) (determining that the majority of the states conclude that danger. no person shall be so held on information without having had a previously ascertained by law, and to be informed of the nature and cause of in the supreme court of the state of new mexico state v. ketelson, 2011-nmsc-023, ¶ 10, 150 n.m. 137, 257 p.3d 957 (internal quotation {11} applying federal law, we therefore must reject defendant’s reliance on the richard c. bosson, justice n.m. const. art. ii, § 14. filing date: october 15, 2013 unrestricted confrontation of all witnesses.”); state v. sherry, 667 p.2d 367, 376 (kan. 1983) guaranteed at trial also controls the admissibility of evidence in preliminary examination case we consider whether the full constitutional right of confrontation in criminal {4} at the rule 6-202 nmra preliminary examination conducted in magistrate court to p.3d 624 (holding that the double jeopardy clause does not protect against “multiple bennett j. baur, acting chief public defender the right of confrontation in article ii, section 14 of the new mexico constitution is a trial analysis, structural differences between state and federal government, or distinctive state overruling.” state v. montoya, 2013-nmsc-020, ¶ 40, 306 p.3d 426 (internal quotation {13} in this case, defendant relies on our broader state constitutional interpretation in filed by a district attorney or attorney general or their deputies, except in


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