State v. Gutierrez

Decision Date15 June 2006
Docket NumberNo. 26,314.,26,314.
Citation2006 NMCA 090,140 P.3d 1106
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Raymond GUTIERREZ, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

Patricia A. Madrid, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.

Ray Twohig, Albuquerque, NM, for Appellant.

Jones, Snead, Wertheim & Wentworth, P.A., Jerry Todd Wertheim, Santa Fe, NM, for Amicus Curiae New Mexico Criminal Defense Lawyers Association.


FRY, Judge.

{1} Defendant filed a motion pursuant to Rule 12-204 NMRA asking this Court to review his conditions of release established by the district court. We granted Defendant's motion and set the case for oral argument. We requested briefing from amici curiae, the New Mexico Criminal Defense Lawyers Association (NMCDLA) and the District Attorney Association. Only NMCDLA filed a brief.

{2} Defendant argues that imposing cash-only bail violates his constitutional rights under Article II, Section 13 of the New Mexico Constitution. Having considered the briefs and oral argument, we hold that the cash-only bond imposed by the district court was not unconstitutional. Therefore, we affirm the district court's order.


{3} Defendant was arrested on a warrant setting his bond at $250,000 cash or surety. He was indicted for first degree murder (willful and deliberate), second degree murder and manslaughter, or in the alternative, first degree murder (depraved mind), second degree murder and manslaughter, conspiracy to commit first degree murder (willful and deliberate), shooting at or from a motor vehicle (great bodily harm), conspiracy to commit shooting at or from a motor vehicle (great bodily harm), and three counts of contributing to the delinquency of a minor. The district court entered an order setting conditions of release, setting a cash-only bond in the amount of $300,000. Defendant filed a motion to review conditions of release in the district court, which was denied.

{4} After obtaining new counsel, Defendant again filed a motion to review conditions of release, specifically arguing that the cash-only bond violated Article II, Section 13 of the New Mexico Constitution. The district court held a hearing and considered several factors relevant to the motion. The court considered the likelihood of Defendant's appearance at trial and the threat he posed to the community. The court then noted that, in the case of surety bonds, bonding companies seem to have changed their business practices and no longer require ten percent up front; instead, they allow a defendant to pay only a small amount of cash up front with subsequent payments over a period of time. In the district court's view, this approach did not provide enough surety that a defendant will adhere to the conditions of release and appear when required. Consequently, the district court denied Defendant's motion to find the cash-only bond unconstitutional and his request to establish alternative conditions of release.


{5} Defendant argues that the cash-only bond imposed by the district court violates the provision in Article II, Section 13 of the New Mexico Constitution that all persons "be bailable by sufficient sureties." Defendant claims the provision is violated by a bond in which no sureties are possible because only cash in the full amount will secure the release of the defendant. Defendant acknowledges that this is an issue of first impression for New Mexico. In support of his argument, Defendant relies on cases from other jurisdictions that have held cash-only bonds violate constitutional provisions that are identical or similar to New Mexico's, two New Mexico civil cases, and the commentary to Rule 5-401 NMRA.

{6} Although Defendant does not expressly challenge the constitutionality of Rule 5-401, he implicitly argues that interpreting the rule to allow for cash-only bonds would be contrary to our constitution's "sufficient sureties" clause. "Historically, we decide cases, if we can, by avoiding constitutional questions." Wallis v. Smith, 2001-NMCA-017, ¶ 12 n.1, 130 N.M. 214, 22 P.3d 682. Therefore, we first address the meaning and scope of Rule 5-401. If a cash-only bond is not authorized under this rule, we need not reach the constitutional question to decide the case. Huey v. Lente, 85 N.M. 597, 598, 514 P.2d 1093, 1094 (1973) ("Courts will not decide constitutional questions unless necessary to a disposition of the case.").

{7} The interpretation of a Supreme Court rule is a question of law that we review de novo on appeal. "In doing so, we look first to the plain meaning of the [rule], which requires us to give effect to the [rule's] language and refrain from further interpretation when the language is clear and unambiguous." HSBC Bank USA v. Fenton, 2005-NMCA-138, ¶ 6, 138 N.M. 665, 125 P.3d 644; State v. Foster, 2003-NMCA-099, ¶ 6, 134 N.M. 224, 75 P.3d 824. "We apply the same rules to the construction of Supreme Court rules of procedure as we apply to statutes." In re Michael L., 2002-NMCA-076, ¶ 9, 132 N.M. 479, 50 P.3d 574.

{8} Rule 5-401(B) provides:

If the court makes a written finding that release on personal recognizance or upon execution of an unsecured appearance bond will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community, in addition to any release conditions imposed pursuant to Paragraph C of this rule, the court shall order the pretrial release of such person subject to the first of the following types of secured bonds which will reasonably assure the appearance of the person as required and the safety of any person and the community:

(1) the execution of a bail bond in a specified amount executed by the person and secured by a deposit of cash of ten percent (10%) of the amount set for bail or secured by such greater or lesser amount as is reasonably necessary to assure the appearance of the person as required. The cash deposit may be made by or assigned to a paid surety licensed under the Bail Bondsmen Licensing Law provided such paid surety also executes a bail bond for the full amount of the bail set;

(2) the execution of a bail bond by the defendant or by unpaid sureties in the full amount of the bond and the pledging of real property as required by Rule 5-401(A) NMRA; or

(3) the execution of a bail bond with licensed sureties as provided in Rule 5-401(B) NMRA or execution by the person of an appearance bond and deposit with the clerk of the court, in cash, of one-hundred percent (100%) of the amount of the bail set, such deposit to be returned as provided in this rule.

Any bail, property or appearance bond shall be substantially in the form approved by the Supreme Court.

{9} Rule 5-401(A) emphasizes pretrial release on personal recognizance, but allows the imposition of additional nonmonetary release conditions, where necessary, pursuant to Paragraph C. If the court determines that a secured bond is required, Paragraph B enumerates the types of secured bonds the court can order that the defendant execute, which "are set forth in the order of priority they are to be considered by the judge." Rule 5-401 Comm. cmt. The first to be considered is an appearance bond with a cash deposit. Rule 5-401(B)(1). If this is inadequate, the court must consider a property bond, where the property belongs to defendant or other unpaid surety. Rule 5-401(B)(2).

{10} The last option is the execution of either the entire amount of the bail bond with a licensed surety or an appearance bond and cash deposit of 100 percent of the amount of bail set. Rule 5-401(B)(3). Amicus curiae NMCDLA concedes that Rule 5-401(B)(3) permits a cash-only bond but argues that it is nonetheless unconstitutional. However, Defendant disagrees and argues that the language of the rule merely provides that a defendant may, at his option, post a cash bond, not that the court may require a cash-only bond.

{11} We disagree with Defendant's interpretation of the rule. Rule 5-401(B) is written in terms of what the "court shall order" and expressly prescribes the conditions that the court may impose on the defendant, including the execution of an appearance bond with a 100 percent cash deposit with the court. See State v. Rivera, 2004-NMSC-001, ¶ 10, 134 N.M. 768, 82 P.3d 939 (explaining that courts must give effect to clear and unambiguous language in a statute). By its express terms, this provision affirmatively grants the court authority to determine the appropriate conditions of release on bail. The rule is not written in terms of what the defendant's options are for posting a secured bond. If Paragraph (B)(3) was merely an option that a defendant could utilize to satisfy any of the types of secured bonds, then no purpose would be served by including it as a type of secured bond to be considered by the court. Therefore, Paragraph (B)(3) must mean that the court is given the discretion to impose cash-only bail. Otherwise, it would serve no purpose, and "[w]e presume that the drafters of the [r]ule intended this language to have meaning and not be superfluous." State v. Anthony M., 1998-NMCA-065, ¶ 12, 125 N.M. 149, 958 P.2d 107.

{12} Defendant further argues that the committee commentary to the rule, which relies on a civil case, confirms that cash-only bonds are not authorized. However, we disagree with the committee commentary's statement that "[t]he court may not require a particular type of security." Rule 5-401 Comm. cmt.; See State v. McCrary, 100 N.M. 671, 673, 675 P.2d 120, 122 (1984) (stating that committee commentary is not binding authority). The case relied upon for that statement is State v. Lucero, which involved a civil election contest. The court in Lucero held that the district court's imposition of a commercial surety and express exclusion of a personal or individual surety on a property bond was...

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