State v. Vasquez

• Decision Date: 12 October 2012
• Docket Number: No. 29,868.,29,868.
• Citation: 288 P.3d 520
• Parties: STATE of New Mexico, Plaintiff–Appellant, v. Armando VASQUEZ, Defendant–Appellee.
• Court: Court of Appeals of New Mexico

288 P.3d 520

STATE of New Mexico, Plaintiff–Appellant,

v.Armando VASQUEZ, Defendant–Appellee.

No. 29,868.

Court of Appeals of New Mexico.

Aug. 8, 2012.

Certiorari Granted, Oct. 12, 2012, No. 33,796.

Gary K. King, Attorney General, Margaret E. McLean, Assistant Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Appellant.

Jacqueline L. Cooper, Chief Public Defender, Eleanor Brogan, Assistant Appellate Defender, Santa Fe, NM, for Appellee.

OPINION

KENNEDY, Judge.

{1} This case presents us with an opportunity to clarify the requirements for the State to appeal a district court order suppressing material evidence under NMSA 1978, Section 39–3–3(B)(2) (1972). Section 39–3–3(B) confers our jurisdiction to hear the State's interlocutory appeals from suppression orders as an exception to the final order doctrine while also conferring a conditional right of appeal to the State. The question in this case is whether the certification language required by Section 39–3–3(B)(2) is a mandatory precondition to the exercise of this Court's jurisdiction. We hold that filing a timely notice of appeal and including the State's required certification is mandatory. We will not exercise our discretion to hear the State's appeal when the certification is lacking, absent a showing of exceptional circumstances.

{2} The State appeals from an order of the district court that excluded two of its principal witnesses the afternoon before Defendant's trial on charges of criminal sexual contact of a minor, kidnaping, and bribery of a witness. The State immediately filed its notice of appeal, which did not comply with the requirements of Section 39–3–3(B)(2). Specifically, it failed to certify that the appeal was not taken for purposes of delay and that the excluded evidence was substantial proof of a material fact in the proceedings. The State did not seek to amend its notice to include this required language until nearly a year thereafter. The State failed to assert an excuse beyond inadvertence for this failure, which is a legally insufficient excuse to justify the relief it now seeks. Because the timely filing of a notice of appeal containing the proper certification is a mandatory statutory precondition to our exercise of jurisdiction to hear the State's appeal, we dismiss the appeal.

I. BACKGROUND

{3} Two critical prosecution witnesses, the alleged victim and her mother, had not appeared for interviews arranged by the prosecution. Having resisted communication with the State for eight months, they ultimately refused to obey subpoenas to appear for interviews with defense counsel, which were set by the State three days before trial. On the afternoon before trial, the district court heard Defendant's motion to exclude the two witnesses from testifying, owing to the failure of the State to produce the witnesses for interviews. Following the failed interview three days prior to trial, the victim had again refused to be interviewed when the prosecutor attempted to provide an interview at her school the morning of the motion hearing. She apparently returned to class prior to Defendant's attorney's arrival at the school. This precipitated the motion being filed. In excluding the witnesses following the hearing, the district court noted that (1) the State was fully aware of the two witnesses' disinclination to testify for eight months prior to trial; (2) the defense repeatedly and unsuccessfully attempted to secure interviews with the witnesses, and the State had control over the defense's ability to contact these witnesses; and (3) the State was apathetic until the eleventh hour about enlisting any judicial remedies to assist in providing contact with the recalcitrant witnesses. On the morning of the trial, the district court denied the State's motion for reconsideration of its previous order and entered the order excluding the witnesses, which included detailed findings of fact and conclusions which the State has also sought to appeal. The court also noted that neither witness had appeared in court for the trial, despite having been subpoenaed and, in the victim's case, personally served with the subpoena. No explanation for their absence from the trial appears in the record. The court entered its order following the State's indication that it could not proceed without the absent victim.

{4} It is undisputed that the State's notice of appeal was filed the same day as the district court's order excluding the witnesses and did not contain the certification language required by the statute. An amended notice of appeal containing the required language was not filed until 344 days later on August 6, 2010. The State never requested to amend its notice, nor did it request any extensions of the filing deadline. We are not called upon to decide whether a district court can grant extensions to file a notice of appeal for an interlocutory appeal under Section 39–3–3(B)(2). The State neither sought, nor was granted, any extensions of time in which to file a sufficient notice of appeal. See Rael v. Blair, 2007–NMSC–006, ¶ 9, 141 N.M. 232, 153 P.3d 657 (holding that a district court could extend a deadline for filing a petition for certiorari in absence of specific language in Rule 12–201 NMRA). Defendant filed a motion to dismiss the appeal, to which the State responded. We held the motion in abeyance pending submission of the case to a panel of this Court, and we now proceed to address the motion. Since this Court's dismissal of the State's appeal is dispositive, we do not address the merits of the underlying suppression order in this Opinion.

II. DISCUSSIONA. The Timeliness and Certification Requirements are Mandatory Preconditions to Appellate Jurisdiction Over the Subject Matter

{5} At issue is whether the lack of certification language in the State's notice of appeal inhibits this Court from exercising its jurisdiction to hear the appeal. “Subject matter jurisdiction ... implicates a court's power to decide the issue before it.” State v. Rudy B., 2010–NMSC–045, ¶ 14, 149 N.M. 22, 243 P.3d 726 (internal quotation marks and citation omitted), cert. denied and remanded,––– U.S. ––––, 131 S.Ct. 2098, 179 L.Ed.2d 898 (2011). It is clear under Section 39–3–3(B) that we have subject matter jurisdiction to decide interlocutory appeals where the State appeals from district court orders suppressing or excluding evidence because the statute provides us with the power to decide such issues. See State v. Griego, 2004–NMCA–107, ¶ 5, 136 N.M. 272, 96 P.3d 1192 (“We are allowed by statute to hear interlocutory appeals from non-final orders.”). Nonetheless, Section 39–3–3(B)(2) provides specific requirements for such appeals, stating that the State may take an appeal

within ten days from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property, if the district attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.

To summarize, interlocutory appeals from orders suppressing evidence must (1) be timely, and (2) contain the required certification language.

{6} The State maintains that its first notice of appeal was timely and sufficient to provide notice to the parties that jurisdiction had passed to the appellate court, even though the required certification was not included. The State argues that “[b]ecause the filing of a notice of appeal is not jurisdictional, a fortiori the precise wording of the notice is not jurisdictional, either.” ¹ It further argues that, under the Rules of Appellate Procedure, such defects are to be excused in favor of hearing the appeal. For the reasons that follow, we disagree.

{7} “In practice we have routinely accepted appeals from pretrial suppression and exclusionary orders entered by our district courts, though we have been careful to limit such appeals to the letter of the statute.” State v. Gomez, 2006–NMCA–132, ¶ 40, 140 N.M. 586, 144 P.3d 145 (Bustamante, C.J., Fry, J., specially concurring). Statutes, like Section 39–3–3, create our jurisdiction by designating proper courts and subject matter for appeals and set “ mandatory preconditions to the exercise of jurisdiction.” Trujillo v. Serrano, 117 N.M. 273, 277, 871 P.2d 369, 373 (1994); see Govich v. N. Am. Sys., Inc., 112 N.M. 226, 230, 814 P.2d 94, 98 (1991). The distinction between our subject matter jurisdiction over an appeal and mandatory preconditions to our exercise of such jurisdiction lies in the difference between our being granted the power to hear a case, and what a party must do to properly invoke our jurisdiction in bringing an appeal. Garcia v. State, 2010–NMSC–023, ¶ 25, 148 N.M. 414, 237 P.3d 716;see Govich, 112 N.M. at 230, 814 P.2d at 98 (“declin[ing] to exercise discretion to excuse or justify any improper attempt to invoke [appellate] jurisdiction” and indicating that “[i]t is probably imprecise to say [this Court] cannot exercise such discretion” to hear a case where a party has failed to meet mandatory preconditions). Mandatory preconditionsto the exercise of our jurisdiction come from the “mandatory sections of our rules of appellate practice.” Id. For example, the statutory mandates for time and place of filing the notice of appeal have previously been held to be mandatory preconditions. See id., 112 N.M. at 230, 814 P.2d at 98;State v. Dominguez, 2007–NMCA–132, ¶ 10, 142 N.M. 631, 168 P.3d 761;State v. Upchurch, 2006–NMCA–076, ¶ 2, 139 N.M. 739, 137 P.3d 679;State v. Roybal, 2006–NMCA–043, ¶ 2, 139 N.M. 341, 132 P.3d 598.

{8} Like the statutory requirements for time and place of filing the notice of appeal, the certification language that “the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding” is a requirement explicitly stated in the statute enabling the State...