State v. Katrina G.

• Decision Date: 04 April 2008
• Docket Number: No. 25,991.,25,991.
• Citation: 144 N.M. 205,185 P.3d 376,2008 NMCA 069
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. KATRINA G., a child, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

185 P.3d 376

2008 NMCA 069

144 N.M. 205

STATE of New Mexico, Plaintiff-Appellee, v. KATRINA G., a child, Defendant-Appellant.

No. 25,991.

Court of Appeals of New Mexico.

April 4, 2008.

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

Silva and Grano Law Firm, David Silva, Las Vegas, NM, for Appellant.

OPINION

SUTIN, Chief Judge.

{1} Two days before trial, Child filed a motion to suppress evidence obtained pursuant to a search warrant that did not contain a written authorization for a nighttime search of Child's home. Child sought no evidentiary hearing but instead sought a ruling based solely on the absence of the magistrate judge's signed authorization for a nighttime search on the warrant.

{2} In a narrow holding, we determine that the motion was appropriately denied by the children's court. It became apparent when the motion was addressed on the first day of trial, after the jury was picked, that the State wanted the magistrate judge to testify. The State represented that the magistrate judge would testify that he knew the warrant was sought for a nighttime search and that he expected it to be executed in the nighttime. However, the magistrate judge was not available to testify at the trial. In the court's view, if the suppression issue was to be heard, an evidentiary hearing was necessary but could not occur at the trial. Child did not request or propose that some alternative, for example, a continuance, mistrial, or new trial if she was convicted, be chosen to provide for an evidentiary hearing to determine if the search based on the warrant violated the Fourth Amendment. Because Child prejudicially delayed the filing of the motion to suppress and did not request or propose a reasonable, practical alternative for an evidentiary hearing, Child was not denied her constitutional right to a hearing on her motion to suppress.

BACKGROUND

{3} Just after 10:00 p.m. police responded to a call of a shooting at the residence of Katrina G. (Child), then thirteen years old. Police went inside the house, where they observed Child holding a blood-soaked towel to the head of Victim, Adrian U., also thirteen years old. The officers also observed a small caliber firearm, a spent casing, and blood in plain view on the living room floor near Child and Victim. Medical personnel took Victim to the hospital, where he died the next morning from a gunshot wound to his head. Linda M., Child's mother (Mother), told the officers that Victim shot himself. Mother, Child, and all of the others present at the scene were taken to the police station for questioning. Only police and medical personnel remained at the scene. Based on the statements taken at the police station, the children's court found that Child had shot Victim.

{4} In connection with the investigation and as the questioning progressed that night, Sergeant Romero prepared a search warrant affidavit and went to the residence of a magistrate judge to obtain a warrant to search Child's residence. The magistrate judge signed the warrant at his home at approximately 1:50 a.m. The warrant, which appears, for the most part, to be in the form approved by our Supreme Court, see Rule 9-214 NMRA, stated: "YOU ARE HEREBY COMMANDED to search forthwith the person or place in the Affidavit between the hours of 6:00 a.m. and 10:00 p.m., unless I have specifically authorized a nighttime search[.]" Below the magistrate judge's signature, the warrant stated: "AUTHORIZATION FOR NIGHTTIME SEARCH" followed by "I further find that reasonable cause has been shown for nighttime execution of this Warrant. I authorize execution of this Warrant at any time of the day or night for the following[.]" At this point the page ends, as shown. There is no second page to the warrant, and the magistrate judge's signature does not appear under or specifically related to the nighttime authorization.

{5} The police executed the warrant starting at approximately 2:00 a.m. While the search warrant was executed, Child and her mother were still at the police station. The home had been under constant police surveillance from the time Victim had been removed by medical personnel and those present had been taken for questioning. The search produced a small caliber handgun and a spent shell casing.

{6} Child became the subject of a children's court case in which the State sought to have her adjudicated a delinquent child based on involuntary manslaughter. The petition was filed on January 18, 2005. Child was in detention at the time the petition was filed. As required under law, the time limit for commencing the adjudicatory hearing was therefore February 17, 2005. See Rule 10-226(A) NMRA. The adjudicatory hearing was set to commence on February 16, 2005. Child filed a motion on February 10, 2005, to disqualify the office of the district attorney for conflict of interest. Based on that motion the State obtained an extension of time until April 19, 2005, to allow time to appoint a special prosecutor. This was the maximum extension that could be obtained from the children's court. See Rule 10-226(D). A further extension, through June 3, 2005, was obtained from the Supreme Court. See Rule 10-226(E). The adjudicatory hearing was then set for May 25, 2005.

{7} Early on, Child was given adequate opportunity to present a motion to suppress evidence. Child in fact took that opportunity, but the motion Child presented, that was timely, was not based on whether the search was unconstitutional as the result of an invalid warrant. It was not until May 23, 2005, two days before the date set for commencement of the adjudicatory hearing, that Child filed her motion to suppress the evidence seized in the home on the ground that the search was unconstitutional because the warrant did not expressly authorize a nighttime search.

{8} The parties and the court discussed the motion to suppress during the adjudicatory hearing on May 25. In the discussion, it became clear that the State believed that it had been prejudiced by the late filing of the motion. The State argued that the magistrate judge knew that the search would be conducted immediately that night, and that he implicitly authorized a nighttime search and would have signed the nighttime authorization had he been asked to do so, and that the magistrate judge's testimony was required on the issue. The court expressed its view that the State was prejudiced by the late filing of the motion to suppress.

{9} Based on the State's argument, the court determined that an evidentiary hearing was necessary, unless Child agreed to accept what the State was representing in regard to the magistrate judge's intentions. The court noted that Child was required to request an evidentiary hearing if she wanted one. The court was clearly concerned about Child's counsel's failure to timely move to suppress on the issue of the warrant. The court also expressed concerns that a jury was already picked and that jeopardy had attached, and stated too that Child's counsel had put the prosecution in a predicament by raising the issue so late. See In re Ruben O., 120 N.M. 160, 163, 899 P.2d 603, 606 (Ct.App.1995) (indicating that the time limits for holding adjudicatory hearings are jurisdictional). The court orally ruled that the motion was untimely under Rule 5-212 NMRA and Rule 10-103.1 NMRA. At no time during the discussion of the motion to suppress did Child request an evidentiary hearing or agree to have the motion heard based on the State's representations as to what the magistrate intended. The court entered an order denying the motion to suppress on the ground it was untimely under Rule 5-601 NMRA and Rule 10-103.1. We will discuss Rules 5-212, 5-601, and 10-103.1 shortly.

{10} The jury concluded that Child committed involuntary manslaughter, after which the children's court adjudicated her a delinquent child. Child appealed that adjudication to this Court. While the appeal was pending on this Court's summary calendar, we remanded for an evidentiary hearing and findings of fact relating to various issues. In particular, we asked the district court to address:

[T]he historical facts surrounding the apparent inability of the [children's] court either to accommodate Child's motion to suppress, or to evaluate the validity of the nighttime search upon Child's repeated objections at trial, as well as for the purpose of obtaining written findings on the historical facts which bear upon the viability of the various legal theories surrounding the propriety of the nighttime search, and the effect of any violation of the applicable rules and Child's constitutional rights on the admissibility of the evidence obtained in the course of the search.

{11} On remand, after conducting an evidentiary hearing, the children's court entered findings of fact and conclusions of law relating to the issuance of the warrant, as well as the timeliness of the motion to suppress. Specifically, the court entered the following finding in regard to the motion to suppress:

On Monday, May 23, 2005, counsel for the Child filed two Motions in Limine, one of which was a motion to suppress all evidence seized pursuant to the warrant for the lack of nighttime search authorization. This motion was filed on this date despite the fact that counsel for the [C]hild had been provided with a copy of the search warrant that did not specifically authorize a nighttime search in discovery shortly after counsel for the [C]hild's entry of appearance. Counsel for the [C]hild knew, or at the very least, should have known about this issue yet he either deliberately waited until the last minute to file this motion or was inadequately prepared.

The court also entered a finding of fact that "[t]he [c]ourt was not able to hear the Child's [m]otion and reset the adjudicatory hearing within the time limits imposed by the Supreme Court in its order granting an extension of time to...