State v. Lizzol

• Decision Date: 18 May 2007
• Docket Number: No. 30,019.,30,019.
• Parties: STATE of New Mexico, Plaintiff-Petitioner and Cross-Respondent, v. Mark Joseph LIZZOL, Defendant-Respondent and Cross-Petitioner.
• Court: New Mexico Supreme Court

160 P.3d 886

2007 NMSC 024

STATE of New Mexico, Plaintiff-Petitioner and Cross-Respondent, v. Mark Joseph LIZZOL, Defendant-Respondent and Cross-Petitioner.

No. 30,019.

Supreme Court of New Mexico.

May 18, 2007.

Gary K. King, Attorney General, Jacqueline R. Medina, Assistant Attorney General, Santa Fe, NM, for Petitioner and Cross-Respondent.

John Bigelow, Chief Public Defender, Linda Yen, Assistant Appellate Defender, Santa Fe, NM, for Respondent and Cross-Petitioner.

OPINION

CHÁVEZ, Chief Justice.

{1} This case presents us with an opportunity to clarify whether the State may appeal the dismissal of a case based on a judge's decision to exclude evidence for lack of foundation. We hold that double jeopardy principles do not allow the State to appeal in such circumstances. Because of our holding, we do not reach the issue of whether the judge's evidentiary ruling in this case was in error.

I. BACKGROUND

{2} In the early morning of January 17, 2004, Officer Tanner Tixier of the Albuquerque Police Department pulled over Defendant Mark Lizzol for driving without taillights. Observing signs of intoxication, Officer Tixier asked Lizzol if he had been drinking. Lizzol replied that he had drunk a few beers. Officer Tixier conducted field sobriety tests on Lizzol and, based on his performance, arrested Lizzol. Lizzol was given a breath-alcohol-test (BAT) after being taken to the Prisoner Transport Center and read the Implied Consent Act. As a result of the BAT, Officer Tixier booked Lizzol and filed a criminal complaint in the Bernalillo County Metropolitan Court charging Lizzol with driving under the influence of intoxicating liquor (DUI), see NMSA 1978, § 66-8-102 (2003, prior to amendments through 2005), and driving with faulty equipment, see NMSA 1978, § 66-3-801 (1991).

{3} Trial began on August 30, 2004. In laying the foundation for the admission of the BAT card, Officer Tixier testified that the testing machine was certified by the Scientific Laboratory Division of the Department of Health (SLD). When asked by the prosecutor how he knew the machine was certified, Officer Tixier replied: "There's a small certificate that is posted on the machine itself, stating that that part—." At this point, defense counsel objected, claiming "hearsay, not best evidence and no foundation." Stating that Officer Tixier's testimony was foundational evidence, the judge overruled the objection.

{4} Later, when the State moved for the admission of the BAT card, defense counsel again objected. The judge expressed his concern that, to lay proper foundation, Garza v. State Taxation & Revenue Dep't, 2004-NMCA-061, 135 N.M. 673, 92 P.3d 685, required testimony from an officer with more knowledge about the certification process than Officer Tixier had. After much discussion between the judge and the parties, one of the prosecutors declared: "Rule one way or the other, your Honor, and we'll brief it. One of us will take an appeal." The prosecutor urged the judge to "[f]lip a coin" to decide. At this point, the judge expressed his desire to see the issue go up on an interlocutory appeal, however, the parties informed him that this was impossible. Finally, the prosecutor requested "a final order ... that even though Tixier is certified by SLD, that you find that . . . he's not ... [an] appropriately qualified witness. We'll appeal it." The judge replied:

Yeah, because I'd sure like to find the answer to that. And I'm not saying I necessarily believe it one way or another. I'm just saying right now, it's too close to call. And if it's going to be that way, I'm going to find reasonable doubt in all of this stuff.

So I'll go ahead and find that—that the officer in this case was not the proper person to be appropriately—the appropriately qualified witness by certification. And as such, I'll suppress the breath test.

The judge further stated: "I'll get a final order out. As such, I'm going to find that I had reasonable doubt in the case...." After ensuring that the State was resting its case, the judge continued: "So I find that I have reasonable doubt based on that. And as such, would find the Defendant not guilty at this point, and then we'll just leave it as such." On the written order entered the next day was the following:

BY THE ORDER OF THIS COURT: The breath card is suppressed because the officer is found not to be "A qualified individual" to testify to the certification of the breath machine under [Garza], the case is therefore dismissed.

{5} The State appealed to the Second Judicial District Court. See NMSA 1978, § 34-8A-6(C) (1993). Concluding that the judge abused his discretion in not admitting the BAT card, the district court reversed the metropolitan court and remanded the case for trial. Lizzol appealed to the Court of Appeals raising, among other issues, the question of whether double jeopardy principles barred the State from appealing the case to the district court. See State v. Lizzol, No. 25,794, 2006-NMCA-130, ___ N.M. ___, 160 P.3d 902, 2006 WL 3001105 (Aug. 28, 2006). The Court of Appeals concluded that our opinion in County of Los Alamos v. Tapia, 109 N.M. 736, 790 P.2d 1017 (1990), allowed the State to appeal a trial court's incorrect exclusion of evidence when the trial court was confused about what was required by law to establish foundation. Thus, the court held that double jeopardy did not bar the State from appealing the metropolitan court's evidentiary ruling.¹ Lizzol, 2006-NMCA-130, ¶ 29.

{6} However, the Court of Appeals thought it "vexing" that we held in Tapia that the State could appeal a trial court's ruling on an evidentiary matter. Id. ¶ 28, 790 P.2d 1017. The court noted that in Tapia we quoted Burks v. United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), in holding that the "incorrect receipt or rejection of evidence" was "trial error" that could be appealed by the State, yet Burks was a case where the defendant was appealing, not the government. Lizzol, 2006-NMCA-130, ¶ 28; see also Tapia, 109 N.M. at 740, 790 P.2d at 1021 (discussing Burks and its progeny). The Court of Appeals implied that it preferred to hold that the State was barred from appealing in this case, but that it found itself bound by our precedent set by Tapia. See Lizzol, 2006-NMCA-130, ¶ 28. In light of the Court of Appeals's concern, we take this opportunity to review Tapia and our double jeopardy jurisprudence in the context of the State appealing a trial court ruling. In doing so, we limit Tapia to the extent that it suggests the State may appeal a trial court's erroneous evidentiary ruling. Because we hold that double jeopardy principles bar the State from appealing this case, we do not reach the issue of whether the metropolitan court judge made an erroneous evidentiary ruling in Lizzol's case.²

II. DISCUSSION

A. When a Trial Court Makes an Evidentiary Ruling and Concludes That the Evidence Is Insufficient to Proceed Against the Defendant, the Defendant Is Acquitted and the State May Not Appeal

{7} "Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that a verdict of acquittal ... [cannot] be reviewed, on error or otherwise, without putting a defendant twice in jeopardy, and thereby violating the Constitution." United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977) (quoted authority and alterations omitted). This rule is so fundamental that an appellate court may not review an acquittal even if it was based on an "egregiously erroneous foundation." Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962) (per curiam). Thus, the critical issue in this case is whether the trial court's ruling was an acquittal. The State argues that what matters is not the trial court's oral statements concerning Lizzol's guilt, but its final written order and its clear intent that its ruling be appealed. Our review of binding United States Supreme Court precedent convinces us that the State is wrong. What matters is not the words of the trial court—either written or oral, nor the trial court's intent that the case be appealed. Instead, whether a defendant was acquitted depends on whether the trial court's ruling, however labeled, correctly or incorrectly resolved some or all of the factual elements of the crime.

{8} In United States v. Sisson, the defendant went to trial for refusing to be inducted into the military. See 399 U.S. 267, 271, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970). After trial, claiming that the district court lacked jurisdiction, the defendant moved the court "to arrest the judgment." Id. at 276, 90 S.Ct. 2117. Although the district court granted the motion, it did not rule on the jurisdictional argument. Id. at 277, 90 S.Ct. 2117. Instead, after concluding that it was convinced of the defendant's sincerity, the district court held that the defendant could not constitutionally be compelled to serve in the Vietnam war. Id. at 277-78, 90 S.Ct. 2117. The government appealed under a statutory provision allowing it to appeal from decisions arresting judgment.³ Id. at 279, 90 S.Ct. 2117. Notwithstanding the district court's characterization of its ruling as an arrest of judgment, the United States Supreme Court held that the ruling was an acquittal since it was "made on the basis of evidence adduced at the trial." Id. at 288, 90 S.Ct. 2117. Thus, the Court dismissed the appeal because it lacked jurisdiction to hear it. Id. at 308, 90 S.Ct. 2117.

{9} Citing Sisson, the United States Supreme Court held in Martin Linen Supply Co. "that what constitutes an `acquittal' is not to be controlled by the form of the judge's action." 430 U.S. at 571, 97 S.Ct. 1349. Instead, the Supreme Court stated that the question is "whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged." Id. (emphasis added).

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