State v. Angeles

• Decision Date: 10 August 2017
• Docket Number: NO. 34,663,NO. 34,745 (consolidated),34,663,34,745 (consolidated)
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. STEVEN A., Child-Appellant.
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee, v. STEVEN A., Child-Appellant.

NO. 34,663

NO. 34,745 (consolidated)

COURT OF APPEALS OF THE STATE OF NEW MEXICO

August 10, 2017

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY

Jane Shuler Gray, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Walter Hart, Assistant Attorney General

Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Allison H. Jaramillo, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

VANZI, Chief Judge.

{1} Steven A. (Child) appeals his adjudication of delinquency for criminal trespass, contrary to NMSA 1978, Section 30-14-1(C) (1995). On appeal, Child argues that (1) the children's court violated his right to be free from double jeopardy when it rejected the special master's recommendations, (2) the children's court violated his right to due process when it reviewed and reversed the special master's recommendations without a hearing, (3) the special master erred by admitting into evidence Child's statement that he knew he was not allowed on the premises, (4) there was insufficient evidence of criminal trespass, and (5) the special master erred by allowing inadmissible hearsay. We affirm.¹

BACKGROUND

{2} Child was charged with criminal trespass on July 22, 2014, contrary to Section 30-14-1(C). The State's juvenile delinquency petition alleged that Child "did knowingly enter or remain at 400 Riverwalk Drive (Rec Center), Carlsbad, Eddy County, New Mexico, land owned, operated or controlled by the State of New Mexico or a political subdivision thereof, and permission had been denied to [C]hild or withdrawn by the custodian of the lands, a misdemeanor[.]"

{3} The New Mexico Children's Court Rules provide that a special master may be appointed to assist in any children's court proceeding. Rule 10-163(A) NMRA. With respect to proceedings under the Delinquency Act (the Act), NMSA 1978, §§ 32A-2-1 to -33 (1993, as amended through 2016), the special master has—among other things—the power to make judicial determinations of probable cause and preside over detention hearings. Rule 10-163(C)(2). "All recommendations of the special master are contingent upon the approval of the children's court judge." Rule 10-163(C). The children's court judge must review the recommendations of the special master and may adopt such recommendations, modify them, reject them in whole or in part, receive further evidence, or may remand them to the special master with instructions. Rule 10-163(F)(1). Because the children's court judge is the final arbiter of children's court proceedings, New Mexico's children's court system is effectively a two-step process.

{4} On October 10, 2014, a special master conducted an adjudicatory hearing in Child's case. Two witnesses testified at the hearing: Sarah Carbajal, who is an attendant at the Rec Center, and Officer Josh Rodriguez. Carbajal described the Rec Center as a three-story building with various recreational facilities on its premises. Carbajal testified that she has the authority to ask children to follow Rec Center rules and give them verbal warnings if they do not follow the rules and, if they continue to disobey, to have them leave the premises for up to a month. In addition, if thebehavior continues, a Rec Center attendant can call a police officer to issue a criminal trespass warning (CTW). When a child has been issued a CTW, he is not allowed back on the property until he goes before the board at the Rec Center. Carbajal testified that staff members know which children have been issued a CTW by virtue of internal communications with other staff, and that they also have a sheet of paper indicating who has issued a CTW and to whom.

{5} On July 22, 2014, Carbajal saw Child in front of the Rec Center skate park and, knowing he was not allowed to be on the property, approached Child and informed him of such. She told Child he had a CTW, therefore, he could not be on the property. Child's attorney objected to this testimony on hearsay grounds, and the special master overruled the objection. Carbajal further testified that, after she approached Child and told him he had to leave, "he acknowledged that I had spoken to him but he did not leave in a timely manner, so I went ahead and called an officer."

{6} Officer Rodriguez was dispatched to the Rec Center and arrived about thirty minutes after Carbajal's call. Upon locating and identifying Child, who was still on the property, Officer Rodriguez advised Child that Child was not allowed to be there and that he would be receiving a criminal trespass citation. The State sought to elicit testimony from Officer Rodriguez about whether Child acknowledged he knew he was not allowed on the property. Child's attorney objected pursuant to Section 32A-2-14(D) (requiring proof that the statements were elicited only after a knowing,intelligent, and voluntary waiver of the child's constitutional rights was obtained). Finding that Child's statements were voluntary, the special master overruled the objection, and Officer Rodriguez proceeded to testify that Child admitted he knew he was not allowed on the property. Officer Rodriguez further testified that he did not indicate to Child that Child was detained, his tone of voice was the same as it was during his testimony in court, the lights of his police car were not flashing, he had nothing in his hands, he was accompanied by another officer, and there was no reason for Child to feel apprehensive.

{7} After the hearing, the special master entered findings and conclusions and found, in relevant part:

8. No list containing [Child's] name as a person not permitted at the Rec Center was introduced into evidence.

. . . .

11. There was no documentation or testimony of anyone, in a position of authority to do so at the Rec Center, having ever informed [Child] he was not permitted at the Rec Center on July 22, 2014, prior to July 22, 2014.

. . . .

16. Officer Rodriguez testified . . . dispatch told him [Child] had a CTW and there was confirmation of a CTW having been issued to [Child] in a database [Officer] Rodriguez described. No evidence about the database was introduced into evidence. . . .

17. No written CTW or documentation showing a CTW for [Child] was introduced into evidence.

18. . . . It is unclear to the [c]ourt whether [Child's] location was still inside the Rec Center property [when Officer Rodriguez arrived], or whether he left the property. For this reason the [c]ourt must find there is reasonable doubt as to whether [Child] had remained on the property after visiting with [Carbajal], was leaving, or had left.

Based on its findings, the special master concluded that the State failed to prove beyond a reasonable doubt that Child committed the delinquent act of criminal trespass.

{8} Pursuant to Rule 10-163(E), the State filed several exceptions to the special master's proposed findings and conclusions, arguing that there was no reasonable doubt concerning Child's presence on the property when Officer Rodriguez arrived and that Child knew consent to remain on the premises was withdrawn. If a party objects to the special master's recommendations, Rule 10-163(F)(1)(b) requires the court to hold a hearing; however, there is no evidence in the record that the children's court conducted such a hearing in this case. Although the State alleges that the required hearing occurred on January 16, 2015, we are unable to locate a transcript or CD of the hearing in our record. On February 12, 2015, and apparently without a hearing, the children's court "resolve[d] the objections" by reviewing the special master's recommendations and entering a final order. See id.

{9} The children's court rejected the special master's recommendations and, based on the testimony of the witnesses, concluded that Child committed the delinquent actof criminal trespass. The court specifically found that Child was aware that a CTW had been issued against him, and he knew he was not permitted on the property, yet remained on the premises for at least thirty minutes after Carbajal told him to leave. The court also found that whether or not there was documentation of a CTW was irrelevant because "[C]hild was told by no less than two persons in authority that his permission to be on the premises was withdrawn." After a dispositional hearing on February 16, 2015, Child was adjudicated a delinquent child and ordered committed to the Children, Youth and Families Department (CYFD), pursuant to Section 32A-2-19(B)(1), for an indeterminate period not to exceed two years. Child appealed.

DISCUSSION

Double Jeopardy - Article II, Section 15 of the New Mexico Constitution

{10} The first issue Child presents on appeal is whether the children's court's rejection of the special master's recommendation violated Child's right to be free from double jeopardy. Child contends for the first time on appeal that the New Mexico Constitution affords more expansive protection than the Federal Constitution in the double jeopardy and juvenile delinquency contexts and that this Court should adopt Justice Marshall's dissent in Swisher v. Brady, 438 U.S. 204, 219-32 (1978) (Marshall, J., dissenting). Child urges us to hold that jeopardy attached at the start of Child's hearing before the special master. Child also argues that the special master's recommendations constituted an acquittal, and in the alternative, even if they were notan acquittal, Child's double jeopardy rights were violated by the ensuing children's court proceedings.

{11} Child admits that he did not preserve this issue below. Se...