State v. Nehemiah Child G.

• Decision Date: 09 March 2018
• Docket Number: NO. A-1-CA-35528,A-1-CA-35528
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. NEHEMIAH G., Child-Appellee.
• Court: Court of Appeals of New Mexico

417 P.3d 1175

STATE of New Mexico, Plaintiff-Appellant,

v.NEHEMIAH G., Child-Appellee.

NO. A-1-CA-35528

Court of Appeals of New Mexico.

Filing Date: March 9, 2018

Certiorari Denied, April 26, 2018, No. S-1-SC-36974

Hector H. Balderas, Attorney General, Santa Fe, NM, John J. Woykovsky, Assistant Attorney General, Albuquerque, NM, for Appellant.

Bennett J. Baur, Chief Public Defender, J.K. Theodosia Johnson, Assistant Appellate Defender, Santa Fe, NM, for Appellee.

OPINION

FRENCH, Judge.

{1} During the night of January 18-19, 2013, when he was fifteen years old, Defendant Nehemiah G. (Child) killed his father, mother, and three younger siblings. He was indicted on five counts of first-degree murder and three counts of intentional child abuse resulting in the death of a child under age twelve. In October 2015, Child pleaded guilty to two counts of second-degree murder and, as charged, three counts of intentional child abuse resulting in death. Pursuant to NMSA 1978, Section 32A-2-20 (2009), the district court conducted an amenability hearing over the course of seven days in January and February 2016. At the conclusion of the hearing, the court found that "the State failed to prove by clear and convincing evidence that [Child] is not amenable to treatment or rehabilitation as a child in available facilities," and accordingly committed him to the custody of the New Mexico Children, Youth and Families Department (CYFD) until his twenty-first birthday (occurring March 20, 2018). The State has appealed the amenability determination. Because we determine that the district court abused its discretion by (1) insufficiently considering and failing to make proper findings regarding each of the seven statutory factors upon which the amenability determination rests, (2) misinterpreting precedent to conclude that the first four statutory factors related to the commission of the crime were of lesser or no applicability to that ultimate determination, and (3) arbitrarily disregarding uncontradicted expert testimony that indicated Child would not be rehabilitated by his twenty-first birthday, we reverse and vacate the district court's amenability determination, and remand for rehearing.

BACKGROUND

{2} We begin by summarizing the testimony given at the hearing concerning the circumstances of Child's personal life, including his maturity, his situation at home, his social and emotional health, and the facts concerning the commission of the crimes. At the time of the killings, Child lived in a house in Bernalillo County with his parents, Greg G. (Greg) and Sarah G. (Sarah), his nine-year-old brother, Z.G., and his two younger sisters, five-year-old J.G. and two-year-old A.G. The family was involved with and frequently attended church together at Calvary Chapel in Albuquerque, New Mexico. Child met his girlfriend, twelve-year-old A.W., at Calvary Chapel. He played in the church band, and his hobbies included skateboarding and video games, namely a World War II game called "Call of Duty." Child had always been home schooled. His mother taught him, but Child said that his studies had also been largely "self-directed" because his mother was too busy. Child said he planned to get a GED and to join the military when he turned eighteen. He claimed that he had used marijuana every few weeks since he was about twelve years old, which he got from his friends at church.

{3} Child described his mother as generally quiet, but she yelled at him at home. He said that she was always upset with him and his siblings, constantly angry or depressed, and she rarely smiled. Child said that she was verbally abusive to him nearly every day and had told him that she regretted his birth and wished she could stone him to death. Child also said that when she was especially mad, about once each month, she hit the children with a belt.

{4} Child's father, Greg, grew up Catholic but later became involved with gangs. He renewed his faith after spending time in jail, became a Christian pastor, and held a ministry at the Metropolitan Detention Center in Albuquerque, New Mexico. Greg purportedly told Child that before re-converting to Christianity and while he was part of a gang, he was in and out of jail a few times and had last been arrested for a drive-by shooting. Greg worked at Calvary Chapel for a period of time, but lost his job there in 2012. The family had financial difficulties, and Greg began working the night shift at the Rescue Mission. Child said that he and his father occasionally shot guns together. Greg was worried about intruders attacking the family when he worked the night shift, so he kept guns at the house for purposes of protecting the family and gave Child orders to stay up and patrol the property at night. Greg was hard on Child and Child recalled that when he was twelve years old he lost consciousness after being in a fight with his father.

{5} The morning of January 18, 2013, Child communicated to his girlfriend his thoughts about committing the crimes and said that he wanted to see her despite his parents preventing him from doing so. Sarah yelled at Child frequently that day and he felt irritated. He said he played "Call of Duty" for a couple of hours in the late afternoon, but he spent from 5:00 p.m. to 10:00 p.m. in his mother's room with her. Child said that around 11:50 that evening, he had become increasingly angry and he decided that he would proceed with a plan to kill his mother, who by then had fallen asleep with Z.G. in her bedroom. Child retrieved a gun from the closet in her bedroom and shot her in the head two times. Child said that he shot her from about fifteen feet away and that he expected to kill her when he shot. Z.G. went to get tissues to clean up his mother's blood. When Z.G. returned, Child said to him "you're next" and shot Z.G. once in the head. Child claimed that he never liked Z.G. and that Z.G. had once threatened to kill him. Child then proceeded down the hall to find his sisters, who were crying, and shot both of them. Child said that he was certain they were dead after he shot them. Child recalled thinking that his father was a larger person and that he would need a more powerful gun to kill his father when he returned home from working a night shift. He retrieved his father's AR-15 rifle, shot his sister's lifeless body once more to see how loud the gun sounded, and went downstairs to wait for his father to return. Child waited in the bathroom for several hours until he heard his father walk by the door. When his father arrived, Child stepped out and shot him four times in the back, then walked closer to his father's body and shot him in the head.

{6} Both before and after the killings, between 11:20 p.m. on January 18, 2013 and 9:20 p.m. on January 19, 2013, Child and his girlfriend, A.W., exchanged text messages regarding a plan to kill their respective parents. Child also texted A.W. a picture of his mother and brother after he killed them, and much later, after having waited several hours for his father to return before killing him, Child told A.W. that he had killed him, too. They then arranged to meet at Calvary Chapel.

{7} Child was arrested on January 20, 2013. As stated, he was indicted on five counts of first-degree murder and three counts of intentional child abuse resulting in the death of a child under twelve years of age. Nearly three years later, Child pleaded guilty to two counts of second-degree murder, contrary to NMSA 1978, Section 30-2-1(A)(1) (1994), for the deaths of his mother and father, and three counts of intentional child abuse resulting in the death of a child under twelve years of age, contrary to NMSA 1978, Section 30-6-1(D) (2009), for the deaths of his brother and two sisters. The district court subsequently found that the State had failed to establish that Child was not amenable to treatment or rehabilitation, and entered a judgment committing Child "to the custody of [CYFD] to be confined until he reaches the age of twenty-one (21) unless sooner discharged." Child was nineteen years old at the time of disposition, and therefore his juvenile sanction amounted to confinement for a duration of approximately two years. The State appeals from the amenability finding which allowed the imposition of juvenile sanctions rather than an adult sentence.

DISCUSSION

{8} This appeal presents two issues: (1) Does the State have the right to appeal the amenability finding, and (2) Did the district court abuse its discretion in making that finding? We conclude that the State has the right to appeal from the amenability order, and that the district court abused its discretion by making the amenability finding.

A. The State Has a Statutory Right to Appeal

{9} As an initial matter we address whether this Court has jurisdiction over the State's appeal from the determination of the district court on Child's amenability to treatment in juvenile facilities. The State argues that it has both a statutory and constitutional right to appeal under NMSA 1978, Section 32A-1-17 (1999), NMSA 1978, Section 39-3-2 (1966), and Article VI, Section 2 of the New Mexico Constitution.

{10} We first examine the State's statutory arguments. Section 32A-1-17(A) of the Children's Code, NMSA 1978, §§ 32A-1-1 to -25-5 (1993, as amended through 2015), provides that "[a]ny party may appeal from a judgment of the court to the court of appeals in the manner provided by law." Neither party disputes that the district court's ruling resulted in a final judgment for purposes of appeal, and we agree that the judgment is final because all issues of law and fact have been determined and the case has been disposed of by the district court to the fullest extent possible. See Zuni Indian Tribe v. McKinley Cty. Bd. of Cty. Comm'rs , 2013-NMCA-041, ¶ 16, 300 P.3d 133. There is also no question that the State is a party to the case, so whether the State has a right to appeal turns on whether its appeal is "in the manner provided by law." Section...