State v. HouseState v. House
Lead Opinion
OPINION
1. The trial court denied Defendant’s request for bail pending appeal of his convictions for driving while intoxicated (DWI) (second offense), reckless driving, great bodily injury by vehicle (alternatively by reckless driving or DWI), and four counts of vehicular homicide (alternatively by reckless driving or DWI). Defendant has filed a motion in this Court to review conditions of release pursuant to SCRA 1986, 12-205(13) (Repl.1992). This case presents us with an opportunity to determine the constitutionality of
The Appeal-Bond Statute and the Appeal-Bond Rule
2.Section 31-11-1(C) provides as follows: If a defendant is convicted of a noncapital offense other than a violent offense [as defined in subsection D of this statute] and is sentenced to a term of imprisonment not suspended in whole, he shall not be entitled to release pending appeal unless the court finds:
(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if releases; and
(2) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.
3. SCRA 1986, 5^t02(C) (Repl.1992) of the District Court Rules of Criminal Procedure states in pertinent part:
Release after sentencing. After imposition of a judgment and sentence, the court, upon motion of the defendant, may establish conditions of release pending appeal or a motion for new trial. The court may utilize the criteria listed in Paragraph B of Rule 5-401, and may also consider the fact of defendant’s conviction and the length of sentence imposed. The defendant shall be detained unless the district court after a hearing determines that the defendant is not likely to flee and does not pose a danger to the safety of any other person or the community if released.
4. District Court Judge Blackmer found by clear and convincing evidence that Defendant is not likely to flee or pose a danger to the safety of any other person or the community if he is released pending appeal. Judge Blackmer also found that Defendant’s appeal is not for the purpose of delay. These findings satisfy all but one element of
5. Defendant contends that
6. In 1988, New Mexico voters removed entirely any constitutional right to post-conviction bail through a constitutional amendment which provides that “[a]ll persons shall, before conviction be bailable by sufficient sureties, except for capital offenses.”
7. Defendant relies on Justice Montgomery’s dissent in Maples v. State,
8. Defendant asserts that the purpose of bail is (1) to preserve the court’s jurisdiction over a defendant and (2) to assure that a fan-process is followed during the course of the appeal. We agree that the purposes behind setting bail include assurance that the defendant will appear. See State v. Montoya,
9. That goal of effective and efficient administration of justice is one which the judicial branch typically pursues. See generally State v. Jones,
10. In sum, we hold that Section 31 — 11— 1(C)(2) does not violate the separation of powers. We turn next to the interpretation and application of that statute.
Interpretation of
11. No reported New Mexico case has interpreted the “substantial question” element of Section 30-11-1(0(2). However, the language of subsection (C), which is part of the amendments enacted by the legislature in 1988, is practically identical to that contained in
12. Defendant has urged us to interpret “substantial question” in light of the analysis announced in United States v. Miller,
13. The Tenth Circuit considered the Miller approach in United States v. Affleck,
14. We agree with the Tenth Circuit that “ ‘a “substantial question” is one of more substance than would be necessary to a finding that it was not frivolous.’ ” Affleck,
15. We further join with the Tenth Circuit in adopting the second prong of the Miller test. “Under this second prong, bail pending appeal is appropriate if, assuming that the ‘substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial on all counts on which imprisonment has been imposed.’” Affleck,
Procedural History of This Case
16. Defendant, a Navajo man, was charged with a number of offenses in connection with an automobile accident which occurred on December 24, 1992, on Interstate 40 in Bernalillo County. Following a preliminary hearing in Bernalillo County, Judge Allen transferred venue to Taos County with the State’s concurrence because of excessive pre-trial publicity. The percentages of Native Americans in Bernalillo and Taos Counties are 3.7% and 6.5%, respectively.
17. The first jury found Defendant guilty of DWI but deadlocked 9-3 in favor of conviction on the DWI-related felony charges and 8-4 on the reckless driving-related charges. A mistrial was declared, and Judge Allen entered an order permitting a retrial.
18. The State filed a motion for change of venue to Dona Ana County. Evidence was presented that Dona Ana County residents had less knowledge of the case than Taos County residents and that Taos County residents had substantial bias against Defendant and no bias against the State. The percentage of Native Americans in Dona Ana County is 0.8%. Judge Allen denied the motion, finding that transfer to the counties suggested by the State would result in a substantial reduction in the statistical probability that a Native American would appear on the jury and that the State failed in its burden to prove that the population of Taos County was biased against the State. Cf. State v. Archer,
19. The second jury deadlocked 9-3 in favor of conviction on all the remaining charges, and a mistrial was declared. Once again the State moved to change venue from Taos County. Judge Blaekhurst recused, Defendant excused Judge Murdoch, and Judge Blackmer was assigned to hear the case.
20. Initially, Judge Blackmer ruled from the bench that if the third trial was held in a county that had less than a 6.5% Native American population, or if the percentage of Native Americans on the venire was less than that percentage, he would have additional Native Americans added to the venire to raise the percentage to 6.5%. Judge Blackmer changed his mind under the belief that such a plan would violate the rights of the parties and prospective jurors.
21. Judge Blackmer denied the State’s request to return the trial to Bernalillo County, and, over Defendant’s objection, he chose Dona Ana County. See
22. A third trial was held in Dona Ana County, and the jury found Defendant guilty on all of the remaining counts. Judge Blaekmer imposed the maximum sentence on all counts and ran them consecutively except for the sentences for DWI and reckless driving, 364 days and 90 days respectively, which were run concurrently. Three years of the basic sentence were suspended, leaving an actual sentence of 22 years imprisonment.
23. Defendant has raised eight issues on appeal, several of which pertain to the validity of the conviction and sentence for DWI (second offense). As we noted above, Defendant was convicted of this offense at the first trial in Taos County. Even if Defendant raises a substantial question in connection with the convictions obtained after trial in Dona Ana County, he is not entitled to release under
DWI Issues
24. Defendant’s DWI issues pertain to the validity of the prior conviction used to increase his sentence and to the admission of blood test results from which his guilt of the current DWI charge could be inferred. Assuming that Defendant’s change-of-venue issue satisfies the substantial question, there is no question but that Defendant’s DWI issues satisfy the second part of the test under
The 1987 conviction for DWI
25. Defendant filed a motion after the third trial to reduce sentence. The docketing statement suggests that Defendant testified at the hearing on his motion that he was not aware that his 1987 guilty plea to DWI “would be counted as a first DWI in the event of subsequent DWI-related charges.” Arguably, Defendant thus alerted the trial court to the broad question of whether the 1987 conviction could be considered a first DWI for any purpose, including an increased sentence under
26. SCRA 1986, 5-801(B) (Repl.1992) (Effective Aug. 1, 1992) provides that a motion to reduce sentence may be filed within 90 days after the sentence is imposed. As the judgment and sentence was filed on August 15, 1995, Defendant’s September 13, 1995, motion was timely. SCRA 5-801(B) also specifies that the trial court has 90 days after the motion is filed to rule or the motion is deemed to be denied. Judge Blackmer orally denied the motion on November 3, 1995, but he never filed a written order. Defendant filed a notice of appeal from the oral ruling on November 15,1995.
27. Although the trial court’s oral ruling was not a final, appealable order, see Vigil v. Thriftway Mktg. Corp.,
28. The docketing statement indicates that the following evidentiary facts with respect to the 1987 DWI charge were established at the hearing on Defendant’s motion to reduce sentence. Defendant contends that he was informed by a person at the counter at magistrate court that if he went to DWI school he would have his DWI charge dismissed. Defendant signed forms waiving counsel and a jury trial, and he pled guilty to DWI. A judgment convicting Defendant of DWI was filed in magistrate court.
29. Defendant contends on appeal that use of the 1987 conviction to enhance his current sentence for DWI was improper because: he was not represented by counsel, and the magistrate did not explain the consequences of the prior guilty plea; counsel who represented Defendant in proceedings subsequent to the guilty plea did not move to vacate the plea; and the record does not demonstrate a sufficient factual basis for the uncounseled guilty plea. Our research suggests that these contentions do not present close questions.
30. In State v. Miranda,
Admission at the first trial of test results of blood drawn after the accident
31. University of New Mexico Hospital records showed that Defendant had a .18% blood alcohol level thirty minutes after the December 24, 1992, accident. Defendant contends that the admission of medical records and results of tests on blood drawn by medical personnel violated his physician-patient privilege. See generally SCRA 1986, 11-504 (Repl.1994) (general privilege pertaining to confidential communications made for purpose of diagnosis or treatment). Our Supreme Court has stated that blood alcohol tests are nontestimonial evidence and are not protected by the Fifth Amendment. State v. Simpson,
32. Blood drawn pursuant to a search warrant five hours after the crash showed that Defendant had a .10% blood alcohol level. Defendant asserts that admission of tests results from this second blood sample drawn at the hospital was improper because the affidavit for the search warrant did not establish that Defendant was arrested for DWI. See generally State v. Richerson,
33. For the foregoing reasons, we hold that Defendant’s challenges to his conviction for DWI (second offense) do not present a “substantial question” within the meaning of
Venue Transfer
34. At issue is Judge Blaekmer’s decision to grant the State’s motion for change of venue and to move the third trial from Taos County to Dona Ana County. In reviewing whether Defendant’s challenges to the trial court change of venue constitute a substantial question, we start from the position that we will not disturb the trial court’s venue ruling absent an abuse of discretion. See State v. Hernandez,
35. Judge Blaekmer’s order changing venue notes the following: the two trials in Taos County received extensive and pervasive coverage by the Albuquerque media and the weekly Taos newspaper; post-trial interviews with jurors were widely disseminated in Taos County; comments of the District Attorney, prosecutors, defense counsel, and Defendant and his family were published on television and in print media throughout Taos County; remarks critical of the District Attorney by a former and present senator from Taos were published in the Albuquerque Journal and Taos News, respectively; prospective Taos jurors are likely to learn of and share the views of the jurors who served in the first two trials; and Judge Blackhurst commented after the second trial that some jurors did not disclose their biases during jury selection.
36. It is clear from the extensive findings in Judge Blaekmer’s order that he gave thoughtful consideration to the State’s motion. In addition, our review of New Mexico appellate cases informs us that reversal of a trial court’s ruling on a venue motion is not likely. What we are not sure of, however, is whether the exposure of potential venire members to the extent and nature of the publicity and excitement generated prior to the third trial supports a conclusion that a fair and impartial jury could not be found in Taos County, particularly when balanced against Defendant’s rights to a jury of his peers. “Potential jurors’ exposure to pretrial publicity, by itself, does not require a change of venue and does not raise a presumption of prejudice. ‘[T]he pertinent inquiry “is whether the jurors ... had such fixed opinions that they could not judge impartially the guilt of the defendant.” ’ ” Hernandez,
37. We are equally unsure of the propriety of the trial court’s decision to transfer venue to a county with a markedly lower percentage of Native Americans than either Taos County or Bernalillo County. (We expressly intimate no opinion on which county is the proper county to use as a benchmark.) A recent opinion of this Court suggests that Judge Blackmer’s original plan to add Native Americans to the Dona Ana County venire to build up their percentage to a level equal to that of Taos County may have intruded on the rights of non-Native Americans to participate in jury service. See State v. Guzman,
38. Another perspective on the trial court’s ultimate venue decision is that it had the same effect as if the judge had never considered racial demographics in choosing the new venue. Cf. Mallett v. Missouri,
39. The Hams court found that the same constitutional policies (e.g., cancel out antagonistic biases of different groups and enhance legitimacy of the judicial process in the eyes of the public) which underlie the limitations on a prosecutor’s use of peremptory challenges to exclude members of a certain race from a jury also require a trial court to consider racial demographics in exercising authority to change venue of a criminal trial or impanel a foreign jury. Id.
40. While we do not wish to be misunderstood as forecasting the result of Defendant’s appeal on this issue, we conclude that the absence of eases directly on point, the effect of the trial court’s ruling, the interplay of factors bearing on a decision to change venue, and the unique ethnic diversity present in New Mexico all combine to make the venue issue a substantial question. Notwithstanding that the standard of review on appeal would favor affirmance, the question is one that could well be decided the “other way” for the reasons just mentioned. However, Defendant is not entitled to immediate release on bail pending appeal, in view of our ruling against him on the viability of his challenges to the DWI (second offense) conviction and sentence. See Affleck,
Conclusion
41. We hold that
42. Accordingly, we affirm the trial court’s denial of bail pending appeal of the DWI conviction and sentence, and we reverse the denial of bail pending appeal as to the remaining convictions and sentences. Upon completion of Defendant’s sentence for DWI, and allowing for any meritorious deductions pursuant to
43. IT IS SO ORDERED.
Concurrence Opinion
(Specially Concurring).
44. I join in the result reached by the majority upholding the constitutionality of
45. I write separately, however, because, although I agree with the majority that Defendant’s motion for review of the trial court’s order denying post-conviction release on bail pending appeal of his. other convictions demonstrates that his venue challenge raises a substantial question of law, I do not join in the majority’s discussion of this issue. As observed by the majority, in 1988 New Mexico voters approved an amendment to the state constitution deleting any state constitutional right to post-conviction bail.
C. If a defendant is convicted of a non-capital offense other than a violent offense and is sentenced to a term of imprisonment not suspended in whole, he shall not be entitled to release pending appeal unless the court finds:
(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released; and
(2) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.
46. Because Section 31 — 11—1(C) and (D) closely parallel the language of its federal counterpart,
47. In the present case the trial court found that Defendant’s motion for release pending appeal satisfied the provisions of
48. In resolving the question of whether Defendant has satisfied his burden of eligibility for release pending appeal, I concur with the majority that the court in United States v. Affleck,
In sum, we hold that in order to grant bail pending appeal, a court must find that the defendant has met his burden of proving by clear and convincing evidence that he is not likely to flee or pose a danger to the safety of any other person or to the community if released ..., and that he has established ... that the appeal is not for purpose of delay, and:
[1.] that the appeal raises a substantial question of law or fact; and
[2.] that if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed.
49. If the trial court determines that a question raised on appeal constitutes a “substantial question of law or fact,” the trial court must then ascertain whether the issue is “likely to result in reversal or an order for a new trial.” Section 31-1-11(C)(2). As stated in Miller,
50. The Miller court further noted:
A question of law or fact may be substantial but may, nonetheless, in the circumstances of a particular ease, be considered harmless, to have no prejudicial effect, or to have been insufficiently preserved. A court may find that reversal or a new trial is “likely” only if it concludes that the question is so integral to the merits of the conviction on which defendant is to be imprisoned that a contrary appellate holding is likely to require reversal of the conviction or new trial.
Id.
51. Defendant contends, among other things, that his appellate challenge to the propriety of the trial court’s change of venue from Taos County to Dona Ana County raises a “substantial question of law” within the meaning of Section 31 — 11—1(C). Applying the definition of “substantial question of law” and the interpretation of the Bail Reform Act discussed in Affleck,