State Of N.M. v. White

Decision Date10 May 2010
Docket Number588.,No. 28,28
Citation232 P.3d 450,2010 NMCA 043,148 N.M. 214
PartiesSTATE of New Mexico, Plaintiff-Appellee,v.Cornelius WHITE, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

COPYRIGHT MATERIAL OMITTED

Gary K. King, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Appellee.

Robert E. Tangora, L.L.C., Robert E. Tangora, Santa Fe, NM, for Appellant.

OPINION

ROBLES, Judge.

{1} In this case, the State filed a criminal complaint in the magistrate court, charging Defendant with felony offenses and sought to establish probable cause in a preliminary hearing in the magistrate court. When the magistrate made a finding of no probable cause, the State filed the same charges in the district court, which remanded that matter to the magistrate court for a preliminary hearing. The State then succeeded in peremptorily excusing the original magistrate from conducting the preliminary hearing. A second magistrate listened to the tape recording of the original preliminary hearing and, without more evidence, made a finding of probable cause and bound Defendant to district court for trial on the felony charges. In the district court, Defendant entered into a conditional plea agreement, reserving his right to appeal. We hold that the procedures used by the State in this case to obtain a finding of probable cause before a second magistrate were improper, and we reverse Defendant's convictions.

I. BACKGROUND

{2} Defendant was arrested on January 27, 2005, and a criminal complaint was filed in the San Juan County Magistrate Court, charging Defendant with committing two felonies: (1) a fourth or subsequent offense of driving while intoxicated and (2) battery on a police officer. NMSA 1978, § 66-8-102(H) (2004) (amended 2008); NMSA 1978, § 30-22-24 (1971). A preliminary hearing was held before Magistrate Judge James Atcitty on April 6, 2005. After hearing the State's evidence, Judge Atcitty made a finding of no probable cause on both charges, and they were dismissed. See Rule 6-202(C) NMRA (directing that upon completion of the preliminary hearing, if the magistrate finds “no probable cause to believe that the defendant has committed an offense, the court shall discharge the defendant). The deputy district attorney, who presented the State's case to Judge Atcitty, stated “this is one of those cases we will refile in [d]istrict [c]ourt.”

{3} The deputy district attorney then filed a second criminal complaint in district court on April 13, 2005, which was identical to the criminal complaint that was originally filed in the magistrate court. The district court remanded the new case to the magistrate court for a determination of probable cause, and the matter was assigned to Judge Atcitty. The deputy district attorney then filed a notice of peremptory excusal in the magistrate court to disqualify Judge Atcitty from conducting the probable cause hearing. In the magistrate court, Defendant objected and filed a motion on May 26, 2005, seeking an order denying the excusal of Judge Atcitty. After reciting the foregoing procedural history, Defendant's attorney alleged to the best of his knowledge and belief that “this [d]istrict [a]ttorney's [o]ffice has never filed an action in [d]istrict [c]ourt except in an attempt to [avoid] proceeding in Judge Atcitty's [c]ourt after having lost a [p]reliminary [h]earing; such action[s] show a ‘bad reason’ for the action of the [p]rosecutors and acts as a [l]imitation on their freedom to file actions in [d]istrict [c]ourt or [m]agistrate [c]ourt.” Addressing the excusal of Judge Atcitty, Defendant asserted that [s]uch excusal is in violation of Rule 6-106[ (C) NMRA,] which expressly provides that a party cannot excuse a [j]udge after having that [j]udge perform a discretionary act.... The State may not now seek to excuse Judge Atcitty[.]

{4} The case was then assigned to Magistrate Judge Stacey Biel, who set the case for a preliminary hearing on August 17, 2005. In response to Defendant's objection and motion, seeking an order denying the excusal of Judge Atcitty, Judge Biel filed an order remanding the case to the district court

for [d]etermination if this matter can be the subject of a [p]eremptory excusal of ... Magistrate Judge Atcitty[,] given that Judge Atcitty was the original magistrate that ruled against the State after a full preliminary hearing. The State then filed the case under a new number before the [d]istrict [c]ourt which remanded to the [m]agistrate [c]ourt for a determination of [p]robable [c]ause.

Without conducting a hearing, the district court entered an order on December 15, 2005, that “any San Juan County [m]agistrate [j]udge may hear the preliminary hearing in this cause.” The case was set for a preliminary hearing before Judge Biel.

{5} When the preliminary hearing was scheduled to be held on February 15, 2006, Defendant's witness was not available to testify. Judge Biel therefore stated she would listen to the tapes of the first preliminary hearing originally heard by Judge Atcitty and notify counsel of the court's probable cause decision. On February 22, 2006, Judge Biel ruled:

Due to the unavailability of Defendant's witness, ... the tapes from the previous preliminary hearing conducted on April 6, 2005, [before Judge Atcitty] were used. Based on the [taped] testimony presented at the preliminary hearing conducted on April 6, 2005, [before Judge Atcitty] ... Defendant is bound over to [d]istrict [c]ourt to face the charges of 5th [a]ggravated DWI (by refusal) and [b]attery on a [p]eace [o]fficer.

Judge Biel filed a bind-over order on the charges, and the deputy district attorney, who had prosecuted the case from the beginning, filed a corresponding criminal information in the district court on October 5, 2007.

{6} As a result of this convoluted process, the State obtained from Judge Biel in 2007, what it had failed to obtain from Judge Atcitty in 2005-a probable cause determination on the same evidence-that Defendant committed the two felonies originally charged-a fourth or subsequent offense of driving while intoxicated and battery on a peace officer. Instead of a dismissal, Defendant was now required to answer to the charges in district court. In the district court, Defendant filed a motion to dismiss on October 11, 2007, based on the foregoing procedural history, and a claim that he was denied his constitutional right to a speedy trial. After the district court denied the motion, Defendant entered into a plea and disposition agreement with the State and agreed to plead no contest to the misdemeanor of a third DWI and petty misdemeanor battery and reserved “the right to appeal issues of speedy trial and procedures.” The district court approved the agreement and imposed sentence. Defendant was allowed to remain released on bond pending appeal, which he timely took to this Court.

II. DISCUSSION

{7} Defendant makes three arguments on appeal: (1) the State is barred based upon principles of collateral estoppel from presenting identical evidence in a second preliminary hearing to a second magistrate after a magistrate has already determined that there is no probable cause to bind Defendant over to district court; (2) Judge Atcitty was improperly excused under Rule 6-106 because the State had previously requested him to perform a discretionary act by conducting the first preliminary hearing; and (3) Defendant's constitutional right to a speedy trial was violated because prosecution of the case took more than three years. We agree with Defendant on the first two arguments presented, which we address together. We therefore do not address Defendant's remaining argument.

A. Standard of Review

{8} Whether a judge properly ruled on a party's peremptory motion to excuse “presents a mixed question of law and fact.” State v. Devine, 2007-NMCA-097, ¶ 7, 142 N.M. 310, 164 P.3d 1009. We review the judge's findings of historical fact using the deferential substantial evidence standard, while we review the application of the law to those facts de novo.” Id.

B. Analysis

{9} The State first contends that the record on appeal is inadequate to consider Defendant's contention, and matters outside of the record cannot be reviewed on appeal. See, e.g., State v. Telles, 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845 (filed 1998). We disagree. While the record submitted to us does not contain the first criminal complaint filed in the magistrate court, or Judge Atcitty's discharge order following the first preliminary examination, the State does not dispute that either happened. Indeed, the State cites to Judge Biel's order remanding to district court, which states that “Judge Atcitty was the original magistrate that ruled against the State after a full preliminary hearing.” Additionally, there are references to the first magistrate court proceeding, including Judge Atcitty's determination that there was no probable cause throughout the recorded district court hearings. Furthermore, it is beyond dispute that Judge Biel did no more than rule based on hearing the tape of the preliminary hearing before Judge Atcitty. As a result, the record is sufficiently complete for our review of the issue. We therefore address the merits of Defendant's argument.

{10} A common way to commence a felony prosecution in New Mexico is by the filing of a complaint in the magistrate court followed by either an indictment or preliminary hearing and information. See generally Rule 5-201(A) NMRA (providing that a criminal prosecution may be commenced by the filing of a complaint, information, or indictment). However, the New Mexico Constitution directs that [n]o person shall be held to answer for a capital, felonious or infamous crime unless on a presentment or indictment of a grand jury or information filed by a district attorney or attorney general or their deputies [.] N.M. Const. art. II, § 14. Furthermore, [n]o person shall be so held on information without having had a preliminary...

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