State v. Hicks

• Decision Date: 07 February 2002
• Docket Number: No. 21,834.,21,834.
• Citation: 43 P.3d 1078,132 N.M. 68,2002 NMCA 38
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Daryl Sydney HICKS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

43 P.3d 1078

132 N.M. 68

2002 NMCA 38

STATE of New Mexico, Plaintiff-Appellee, v. Daryl Sydney HICKS, Defendant-Appellant.

No. 21,834.

Court of Appeals of New Mexico.

February 7, 2002.

Certiorari Denied April 1, 2002.

Patricia A. Madrid, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Appellee.

Phyllis H. Subin, Chief Public Defender, Vicki W. Zelle, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Denied, No. 27,390, April 1, 2002.

OPINION

BOSSON, Chief Judge.

{1} Under New Mexico's failure to appear statute, a person commits up to a fourth degree felony if, while released pending trial or appeal in a criminal action, he or she "fails to appear before any court ... as required." NMSA 1978, § 31-3-9 (1999). Defendant appeals his conviction for failure to appear. We discuss the meaning of the statutory language "fails to appear" when, as a condition of release from jail, Defendant was ordered to post bond by a date certain, but was not actually ordered to appear in person. Because the facts of this case do not fall within the intended scope of the failure to appear statute, we reverse Defendant's conviction.

BACKGROUND

{2} While driving through Taos, New Mexico, on the evening of March 31, 1998, Defendant was involved in a car accident. He was arrested and charged with great bodily injury by vehicle (driving while intoxicated), in violation of NMSA 1978, Section 66-8-101 (1991). After spending the night in jail, Defendant appeared before the magistrate court the next morning, April 1, 1998. The judge filled out a Release Order and Bond form (Rule 9-303A NMRA 2002 Criminal Form), which was signed by Defendant and provided to him upon his release. On that form, the magistrate judge indicated that a secured bond was set in the amount of $1000, with 10% cash ($100) required to be posted "by 4-1-98." The form was left blank, however, with regard to any order that Defendant appear personally before the court at any particular time.

{3} Conflicting evidence was presented as to the conditions of release. As the magistrate judge recalled, Defendant was released on the condition that he return later in the day with the required $100 and proof of his address and employment. To qualify for a public defender, Defendant was to return completed indigency forms by April 3, 1998. The magistrate judge testified that he believed Defendant was aware of these conditions. The requirement that bond be posted "by 4-1-98" was written in the judge's own handwriting.

{4} Defendant had a different recollection. He believed that he had been given several days in which to find a job and earn the necessary $100. Defendant, who was not from the area, understood that he had until the following Monday, April 6, to post the cash bond. Upon his release from jail, Defendant arranged to do a couple of days of work on the following Monday and Tuesday. He testified that he returned to the courthouse on Monday morning at 8 o'clock to inform the magistrate judge of the work arrangements he had made. He waited until 8:30 a.m. for the magistrate judge, who had still not arrived. Ultimately, Defendant left a note with the magistrate court's secretary, explaining his intentions to post the money. Defendant worked on Monday and Tuesday, April 6-7, earning $120 $130. At the end of his second day of work, Defendant's employer showed him an article on the front page of the local newspaper, which described the accident and indicated that a warrant had issued for Defendant's arrest. In fact, a bench warrant had been issued on April 3, 1998.

{5} Unsettled by the news of his impending arrest, Defendant used his earnings to take a bus out of state. A little over a year later, he was located in Colorado and arrested on the magistrate court's bench warrant. Defendant was extradited to New Mexico to stand trial on the great bodily injury by vehicle charge, after which he was convicted and sentenced to serve four years incarceration, followed by two years parole. We affirmed Defendant's appeal of that conviction in State v. Hicks, Ct.App. No. 21,553 (filed July 25, 2001), cert. quashed, S.Ct. No. 27,093, 131 N.M. 606, 41 P.3d 345 (Jan. 24, 2002).

{6} A separate criminal charge was filed against Defendant on April 4, 2000, charging him with the felony offense of failure to appear, contrary to Section 31-3-9(A). Defendant appeals from a jury verdict on that charge.

DISCUSSION

The Meaning of "Failure to Appear"

{7} The State argues that, when Defendant failed to post bond and fled, he committed an act violating the failure to appear statute, as contemplated by Section 31-3-9 (subsequently amended in 1999). The State contends that Defendant knew he was required to appear before the magistrate court to post bond, and committed the crime when he knowingly and willfully "failed to appear," without excuse or justification. As of the date of the underlying vehicular crime, Section 31-3-9 (1973) read, in part: "Any person released pending trial or appeal in any criminal action who willfully fails to appear before any court or judicial officer as required ... is guilty of a fourth degree felony, if he was released in connection with a felony proceeding." Cf. § 31-3-9 (1999) (subsequently expanding the offense to include failure to appear at a probation revocation proceeding). The jury was instructed pursuant to UJI 14-2229 NMRA 1999. The jury instruction stated:

For you to find [D]efendant guilty of Failure to Appear as required by conditions of release as charged in Count 1, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1. [Defendant] was released pending trial in a criminal action on the conditions that [Defendant] appear as required by the court.

2. [Defendant] failed to appear as required by the court;

3. [Defendant's] failure to appear was willful, without sufficient justification or excuse.

4. This happened in Taos County, New Mexico, on or about the 1st day of April, 1998.

{8} The State argues that the jury found Defendant's conduct met the essential elements of the crime, including the element that Defendant "was released pending trial" on the condition that he "appear as required by the court." Id. After reviewing the arraignment sheet and the Release Order and Bond form, the magistrate judge testified that, to his recollection, Defendant was "required to appear" before the magistrate court by April 1, 1998, to post bond. He did not testify that he had given Defendant a clear verbal order to appear, independent of the requirement that he post bond. The State further argues that, because Defendant had signed the Release Order and Bond form, he knew that he was required to return to the magistrate court to post bond. The State argues that, under the executed Release Order and Bond form, Defendant was required to appear "by 4-1-98" with the money. His failure to do so constituted a failure to appear under the clear and unambiguous language of the statute.

{9} Defendant argues that his failure to post bond does not constitute a failure to appear under Section 31-3-9. Defendant emphasizes that the magistrate judge left blank that portion of the Release Order and Bond form used to establish the time, place, and location of any appearance that would have been required of him. In pre-printed language, the form, partially completed by the magistrate judge, read exactly as follows with blank spaces left incomplete as indicated: "I agree to appear before the court on ___, 19 ___, at ___ located at ___ and thereafter at such times and places required in this case by any court." As previously mentioned, the order form required Defendant to post $100 "by 4-1-98."

{10} Defendant concedes that his failure to post bond may have violated NMSA 1978, Section 31-3-2 (1993), the statute concerning failure to appear as required under recognizance or bail bond. However, Defendant points out that the exclusive penalty under Section 31-3-2(A) is that the court "may issue a warrant for his arrest" and modify the conditions of release, which in fact occurred in this case. In sum, Defendant takes the position that the only "appearance" actually required by the magistrate court was the appearance of money. Although his failure to post bond did violate his conditions of release, he argues that it did not amount to a felony under Section 31-3-9.

{11} In arguing for the inclusion of this case within the statute, the State asserts that the language of Section 31-3-9 is clear and unambiguous, necessitating only a common sense reading without statutory construction. See Levario v. Ysidro Villareal Labor Agency, 120 N.M. 734, 736, 906 P.2d 266, 268 (Ct.App.1995)

(stating that, absent a clear and express legislative intention to the contrary, a court should "presume that the legislature intended the ordinary and common meanings of [the] words to apply"); State v. Richardson, 113 N.M. 740, 741, 832 P.2d 801, 802 (Ct.App.1992) (stating that a common-sense reading will suffice where language is clear and unambiguous). However, where the language of a statute is ambiguous, courts must resort to statutory construction, to search for and effectuate the legislative intent. See State ex rel. Helman v. Gallegos, 117 N.M. 346, 347-48, 871 P.2d 1352, 1353-54 (1994). The principal command of statutory construction is that the court should determine and effectuate the intent of the legislature. See State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995) (stating that main goal of statutory construction is to give effect to legislative intent); State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994) (same). It is also a principal tenet of criminal jurisprudence that ambiguity in criminal statutes is strictly construed against the State. "It has long been part of the common law that penal statutes are strictly construed against the state, and that [a]ny doubts about...