State v. PenmanState v. Penman
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Mark Terrence Sanchez, District Judge
Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM
for Appellee
Kennedy Kennedy & Ives
Joseph P. Kennedy
Laura Schauer Ives
Albuquerque, NM
for Appellant
MEDINA, Judge.
{1} Defendant Kentoine Penman entered a conditional plea of no contest to two counts of possession of a controlled substance (
BACKGROUND
{2} The following facts are based on testimony presented during an evidentiary hearing on Defendant‘s State v. Ware, 1994-NMSC-091, 118 N.M. 319, 881 P.2d 679 (Ware Motion), and Foulenfont motions, and the statement of probable cause supporting the criminal complaint. On an evening in June 2018 following completion of a traffic stop in a residential neighborhood, Hobbs Police Department Officers Jaimes, Martinez, and Gastelum drove further down the street from that traffic stop with their emergency lights activated, in order to detain and question two men, one of whom was Defendant, who were standing in the middle of the street. As the officers approached in their vehicles, the two men walked back toward the sidewalk. Once there, Officer Jaimes questioned Defendant on the sidewalk near where he was standing in the road.
{3} Although Officer Jaimes had not seen the men walking on or along the road, he testified that he had “reasonable suspicion to believe that at some point [the two men] walked and got in the middle of the road” and that “[s]tanding in the middle of the road was good enough” to detain and investigate the two men for violating the pedestrians on roadways statute. See
{4} Officer Jaimes asked Defendant for his identification during the stop and then communicated with a dispatch officer in order to ascertain whether Defendant had any outstanding warrants. Officer Jaimes explained that his standard operating procedure is to not cite individuals for violating
{5} Shamus Wright, an onlooker (and the defendant in a related case, City of Hobbs v. Wright, A-1-CA-39028, mem. op. (N.M. Ct. App. Feb. 16, 2022) (nonprecedential)), verbally objected to Officer Jaimes‘s investigation of Defendant, causing Officers Martinez and Gastelum to focus on Mr. Wright. Soon thereafter, Officer Jaimes told Defendant to “hang on,” and walked away from Defendant to assist in the arrest of Mr. Wright. Officer Jaimes did not recall if he had given Defendant his identification back when he left to assist in the arrest.
{6} Defendant did not remain where Officer Jaimes left him, but instead walked toward the officers and began filming the arrest of Mr. Wright on his phone. Defendant was standing less than two to three feet away from the officers when Officer Jaimes ordered Defendant to step back in order to increase the space between Defendant and Officer Martinez. Although not immediately, Defendant ultimately complied with the order, but then circled around Officer Jaimes and continued filming as Officer Martinez placed Mr. Wright in his patrol vehicle. At this time, Defendant was approximately four to five feet behind Officer Martinez. Officer Martinez told Defendant that he was placing him under arrest because “he was already told once to back away.”
{7} Officer Martinez attempted to grab Defendant by the wrist to arrest him, but Defendant pushed Officer Martinez away and fled. Officer Martinez chased Defendant and physically forced Defendant to stop. Interpreting Defendant‘s stance as an act of aggression, Officer Martinez tackled Defendant to the ground and placed him under arrest.
{8} A baggy containing a white powdery substance was found where Defendant was arrested, and baggies containing a green leafy substance and a white crystalline substance were found in the patrol vehicle where Defendant was placed. The contents of the baggies tested positive for cocaine, marijuana, and methamphetamine, respectively. Defendant admitted the cocaine and marijuana were his, but denied possession of the methamphetamine.
{9} Defendant was charged with two counts of possession of a controlled substance; one count of battery upon a peace officer; one count of assault upon a peace officer; one count of resisting, evading or obstructing an officer; one count of pedestrians on roadways; and one count of possession of marijuana.
{10} Defendant moved to dismiss the criminal information, in which he argued that the pedestrians on roadways; battery upon a peace officer; assault upon a peace officer; and resisting, evading or obstructing an officer charges were subject to dismissal under Foulenfont. Defendant additionally argued that all evidence and statements flowing from the stop should be suppressed because Officer Jaimes lacked reasonable suspicion to investigate him for violating
{11} The district court held an evidentiary hearing on the Foulenfont and Ware motions. At the close of evidence, Defendant argued that the officers were not acting in the lawful discharge of their duties because they lacked reasonable suspicion to believe Defendant violated
{12} Defendant next moved to suppress all evidence under Ochoa, arguing that the initial stop was pretextual. Defendant argued first that Officer Jaimes lacked reasonable suspicion to stop Defendant; and second that the stop was pretextual because (1) the purpose of the stop was “to run random wants and warrants checks on people living in the area“; (2) Defendant was ultimately charged with offenses unrelated to the stop; (3) the officers failed to follow proper body camera procedures; and (4) there was no actual threat to traffic safety. The district court summarily denied Defendant‘s Ochoa Motion, finding that the motion was “not well taken and should be denied.” Five months after the denial of Defendant‘s Ochoa Motion, Defendant filed an offer of evidentiary proof regarding racial demographics and pedestrians on roadways stops over a two-year period in Hobbs, as well as excerpts from a deposition taken of a fellow Hobbs police officer regarding Officer Jaimes‘s police practices. With his offer of proof, Defendant did not renew or request the district court to reconsider the denial of his Ochoa Motion.
{13} Defendant then entered a conditional plea, and this appeal followed.
DISCUSSION
I. Defendant‘s Motion to Dismiss Under Foulenfont
{14} Defendant contends the district court erred in denying his motion to dismiss the charges of pedestrians on roadways; battery upon a peace officer; assault upon a peace officer; and resisting, evading or obstructing an officer under Foulenfont. We hold that the district court erred in denying Defendant‘s motion to dismiss the pedestrians on roadways charge, but affirm the district court as to Defendant‘s remaining charges.
{15} “In Foulenfont, we stated that it was proper for a district court to decide purely legal matters and dismiss a case when appropriate before trial.” State v. LaPietra, 2010-NMCA-009, ¶ 7, 147 N.M. 569, 226 P.3d 668. “Questions of fact, however, are the unique purview of the jury and, as such, should be decided by the jury alone.” Id. A Foulenfont motion “may not be used to test the sufficiency of the [s]tate‘s evidence to establish the elements of the charged crime.” State v. Platero, 2017-NMCA-083, ¶ 8, 406 P.3d 557. Instead, “the underlying question is whether the undisputed facts—whether stipulated to by the state or alleged in the indictment or information—show that the state cannot prove the elements of the charged offense at trial, thereby making a trial on the merits unnecessary.” Id. ¶ 9 (alterations omitted) (citing State v. Pacheco, 2017-NMCA-014, ¶ 10, 388 P.3d 307); see also
{16} We first address whether Defendant was entitled to pretrial dismissal of his pedestrians on roadways charge and, relatedly, whether the officer had reasonable suspicion to stop and investigate Defendant for this offense. We then address whether Defendant was entitled to pretrial dismissal of his battery, assault, and resisting, evading or obstructing an officer charges.
{17} Defendant contends he was entitled to dismissal of his pedestrians on roadways charge because (1) the plain language of
{18} Defendant‘s argument that standing in the middle of a residential street without evidence of walking along the street, as a matter of law, was insufficient to establish a violation of
{19}
A. Where sidewalks are provided it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway.
B. Where sidewalks are not provided any pedestrian walking along and upon a highway shall when practicable walk only on the left side of the roadway or its shoulder facing traffic which may approach from the opposite direction.
{20} The plain language of Subsection (A) prohibits pedestrians from “walk[ing]” along a roadway where sidewalks are provided, and does not include the word “standing.” In addition the term “walk” is modified by the term “along,” meaning “in a line parallel with the length or direction.” Webster‘s Third New Int‘l Dictionary (2002); see State v. Boyse, 2013-NMSC-024, ¶ 9, 303 P.3d 830 (recognizing that we use the dictionary for guidance when determining the plain meaning of statutory language). Reading Subsection (A) together with Subsection (B), which requires a pedestrian, in the absence of sidewalks, to walk along the left side of the roadway or its shoulder facing traffic when practicable, we conclude that
{21} Furthermore, construing the statute to prohibit standing in the middle of the roadway, as urged by the State, would require this Court to read language into Subsection (A) that is not there, and ignore the explicit prohibition of “walking along and upon,” neither of which we will do. See State v. Trujillo, 2009-NMSC-012, ¶ 11, 146 N.M. 14, 206 P.3d 125 (“We will not read into a statute any words that are not there, particularly when the statute is complete and makes sense as written.“); see also State v. Montoya, 2015-NMSC-010, ¶ 66, 345 P.3d 1056 (noting that “a statute must be construed so that no part of the statute is rendered surplusage
{22} To the extent the State also argues that the purpose of
{23} We, therefore, hold that the elements the State must show to prove a violation of
1. Defendant Was Entitled to Pretrial Dismissal of His Pedestrians on Roadways Charge
{24} In reviewing rulings on motions to dismiss under Foulenfont, we look to the facts as alleged in the indictment and presented at the pretrial hearing to determine if the State could not prove these elements, making a trial unnecessary. See Platero, 2017-NMCA-083, ¶ 11. Officer Jaimes testified at the preliminary hearing and reaffirmed during the later evidentiary hearing that he did not see Defendant walking on the road. Rather, he testified that Defendant was only standing. And in the proceedings below and on appeal, the State does not contest that the officers did not see Defendant walking along the road. Instead, the State asserts that the officer “could reasonably infer that Defendant walked into the road” and that showing Defendant was walking is unnecessary.
{25} As discussed above,
2. The Officer Lacked Reasonable Suspicion to Stop and Investigate Defendant
{26} Despite having reversed the district court as to Defendant‘s pedestrians on roadways charge under Foulenfont, we address Defendant‘s contention that the officers’ observation
{27} Defendant contends Officer Jaimes lacked reasonable suspicion to stop and investigate him for violating
{28} The State does not dispute that there was no testimony or evidence of Defendant walking, and instead contends that “Officer Jaimes could reasonably infer that Defendant walked into the road.” But, as we concluded above, the elements of
{29} Our review of New Mexico law reveals that no case has addressed whether an officer‘s observation of a pedestrian standing in the middle of a road is sufficient to provide reasonable suspicion to believe the pedestrian “walk[ed] along and upon” the road in violation of
{30} And jurisdictions with similarly worded statutes5 have found reasonable suspicion or probable cause when there is evidence or testimony that a defendant was walking or running in the street at the time of the stop. See, e.g., People v. Binet, 47 N.Y.S.3d 184, 184-85 (N.Y. App. Div. 2017) (affirming the trial court‘s denial of the defendant‘s motion to suppress for lack of reasonable suspicion and concluding the officers had reasonable suspicion to stop the defendant for violating
{31} Here, as stated above, there was no testimony that Defendant was walking along and upon the road when Officer Jaimes stopped him. Nor did Officer Jaimes articulate any facts that would support a reasonable inference that Defendant had walked along and upon the adjacent road prior to the officer‘s arrival. Therefore, we hold that Officer Jaimes lacked reasonable suspicion to stop Defendant for a violation of
B. Battery and Assault Upon a Peace Officer and Resisting, Evading or Obstructing an Officer
{32} Defendant argues that the district court improperly denied his Foulenfont Motion on the battery upon a peace officer, assault upon a peace officer, and resisting, evading or obstructing an officer charges. Specifically, Defendant maintains the officers were not acting in the lawful discharge of their duties and lacked reasonable suspicion for the stop, and as such “there can be no charge of resisting or obstructing an officer” or “[f]elony assault and felony battery charges.” Defendant additionally contends the officers were not acting in the lawful discharge of their duties because he did not resist the officers before the officers decided to arrest him and he was “engaging in protected First Amendment activity.”6
{33} The statutes identifying the crimes of battery upon a peace officer, assault upon a peace officer, and resisting, evading or obstructing an officer require, in relevant part, that the officer be “in the lawful discharge of his duties” when the crime is committed. See
{34} In analyzing whether an officer was acting within his or her lawful discharge of duties, the question “is whether the officer was performing his or her official duties.” State v. Nemeth, 2001-NMCA-029, ¶ 54, 130 N.M. 261, 23 P.3d 936 (internal quotation marks and citation omitted), overruled on other grounds by State v. Ryon, 2005-NMSC-005, ¶ 28, 137 N.M. 174, 108 P.3d 1032.7 Whether the officers are acting in the lawful
discharge of their duties is a question
II. Defendant‘s Motion to Suppress All Evidence Under Ochoa
{35} Finally, Defendant argues that the district court improperly denied his motion to suppress, contending Officer Jaimes lacked reasonable suspicion for the stop, and that the district court erred in failing to hold an evidentiary hearing to determine whether Officer Jaimes instigated the stop as a pretext to search for further criminal activity, in violation of the United States Constitution, the New Mexico Constitution, and Ochoa. The State responds that Defendant was not seized until arrest,8 and even if Defendant was seized, Defendant‘s physical altercation with Officer Martinez constituted a new criminal act, therefore making the evidence admissible. “Appellate review of a motion to suppress presents a mixed question of law and fact. We review factual determinations for substantial evidence and legal determinations de novo.” State v. Paananen, 2015-NMSC-031, ¶ 10, 357 P.3d 958 (internal quotation marks and citation omitted).
{36} Ochoa provides a three-step approach the district court must follow when determining whether a pretextual stop has occurred. First, the district court must determine if there was reasonable suspicion or probable cause for the stop, and as usual the state bears the burden of proof. Ochoa, 2009-NMCA-002, ¶ 40. Second, if the stop can be “justified objectively on its face,” and the defendant continues to assert that the stop was pretextual, the district court must decide whether the motive for the stop was “unrelated to the objective existence of reasonable suspicion or
{37} At the outset, we observe that Ochoa involved a vehicle traffic stop and specifically discussed pretextual stops in that context. See id. ¶¶ 4, 38. In addition, no New Mexico case has decided that Ochoa applies to a pedestrian stop, and neither party argues the applicability of Ochoa to pedestrian stops on appeal. Rather, both parties assume that Ochoa applies. We conclude however, that we need not address whether Ochoa applies because, assuming without deciding that Ochoa applies to pedestrian stops, the evidence of Defendant‘s battery, assault, and resisting, evading or obstructing, controlled substances, and marijuana charges are admissible under the new crime exception. As such, we affirm the district court as right for any reason. See State v. Gallegos, 2007-NMSC-007, ¶ 26, 141 N.M. 185, 152 P.3d 828 (holding that the appellate court will affirm the district court‘s decision if it is right for any reason, so long as it is not unfair to the appellant); State v. Rector, 2005-NMCA-014, ¶ 9, 136 N.M. 788, 105 P.3d 341 (affirming a district court‘s denial of a motion to suppress that was based on the finding of reasonable suspicion on the alternative grounds of attenuation). Because we affirm on this ground, we need not address Defendant‘s argument that the district court should have held an evidentiary hearing to determine the motive for the stop. We explain.
{38} Indeed, our analysis under Ochoa would end at the first step, our having already concluded that the officer lacked reasonable suspicion to stop and investigate Defendant under
{39} A brief discussion of the new crimes exception will be helpful to our analysis. We originally adopted the new crime exception for violent crimes, although not by name, in State v. Travison B., 2006-NMCA-146, 140 N.M. 783, 149 P.3d 99; see also Tapia, 2018-NMSC-017, ¶ 19 (discussing our adoption of the new crime exception). In Travison B., this Court assumed officers unlawfully entered an apartment while responding to a domestic disturbance, who then encountered an angry juvenile who battered an officer. 2006-NMCA-146, ¶¶ 2, 9. We held that even though the battery was precipitated by the unlawful entry, “[the c]hild‘s actions against the officers constituted new criminal activity that is not subject to the exclusionary rule.” Id. ¶ 9. We held that “even if there is a causal connection between [the c]hild‘s actions and the officer‘s presence, [the c]hild‘s actions were sufficiently separate and distinct from the officer‘s entry that the exclusionary rule . . . does not extend to suppress the officer‘s testimony about [the c]hild‘s acts of a new crime against the officers.” Id. ¶ 11.
{40} Our Supreme Court further discussed and clarified the new crime exception in Tapia. In Tapia, the defendant was a passenger in a vehicle stopped for going 40 miles per hour in a 55 mile per hour zone and because the officers could not read the license plate. 2018-NMSC-017, ¶ 2. One of the officers involved in the stop noticed the defendant was not wearing a seatbelt, and the officer asked for the defendant‘s license. Id. The defendant stated he did not have a license, and instead gave the officer his brother‘s identifying information and signed as his brother for the seat belt citation. Id. ¶¶ 1-3.
{41} At the same time, a second officer was notified of the defendant‘s real identity by a second passenger. Id. ¶ 4. When asked to clarify his identity, the defendant again gave his brother‘s information. Id. The officers arrested the defendant and charged him
{42} Our Supreme Court affirmed, agreeing with the state that the new crime exception applied. Id. ¶¶ 9, 50. In Tapia, our Supreme Court expanded the new crime exception to apply to both violent and nonviolent crimes committed in response to unlawful police action, even when the evidence obtained as a direct result of the unlawful activity is suppressed. Id. ¶ 50. The Court held that “[a]pplication of the three-part federal attenuation analysis comports with our preference to assess the reasonableness of law enforcement by considering the totality of the circumstances of each case” under the federal or state Constitution when applying the new crime exception. Id. ¶ 47. Therefore, we look to “(1) the lapsed time between the illegality and the acquisition of the evidence, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct.” Id. ¶ 15 (citing Brown v. Illinois, 422 U.S. 590, 603-04 (1975)). Analyzing the facts through the attenuation factors, our Court held the “[d]efendant‘s attempts to conceal his identity after the unlawful traffic stop sufficiently purged the taint of the initial illegality so as to render the exclusionary rule inapplicable.” Id. ¶ 50.
{43} We turn to the three-factor attenuation analysis outlined in Tapia. For the first factor, there was no evidence presented at the evidentiary hearing regarding the amount of time between Officer Jaimes‘s stop of Defendant and the arrest of Defendant by Officer Martinez. Generally, we weigh this factor in favor of suppression unless substantial time has passed. See id. ¶ 35. Because we lack the information here that would assist in determining this factor, we will weigh it in favor of suppression. See State v. Edwards, 2019-NMCA-070, ¶ 11, 452 P.3d 413.
{44} In contrast, the second factor, the presence of intervening circumstances such as the commission of new or independent criminal acts, weighs in favor of admission of the evidence. The commission of a new crime may create an intervening circumstance sufficient to purge the taint of the initial illegality. See Tapia, 2018-NMSC-017, ¶¶ 36-37 (concluding that the defendant‘s new criminal activity created an intervening circumstance because the criminal act was “an unprompted act of his own free will“). Defendant‘s physical altercation with Officer Martinez was not part of Defendant‘s initial stop and interaction with Officer Jaimes and was not “a natural or predictable progression” of his interaction with Officer Jaimes. See id. ¶ 37. Rather Defendant engaged in combative behavior with Officer Martinez when Officer Martinez attempted to place Defendant under arrest. Thus the altercation did not progress from Defendant‘s “unlawful seizure [by Officer Jaimes] but rather [was] an unprompted act of his own free will.” See id. Therefore, we weigh this factor in favor of attenuation.
{45} Ending with the third factor, the purpose and flagrancy of the police misconduct, “[t]o be flagrant, more severe police misconduct is required than the mere absence of proper cause for the seizure.” State v. Ramey, 2020-NMCA-041, ¶ 23, 473 P.3d 13 (quoting Edwards, 2019-NMCA-070, ¶ 12). A defendant must demonstrate purposeful and flagrant official misconduct where “(1) the impropriety was obvious, or the official knew his conduct was likely unconstitutional but continued nonetheless; or (2) the misconduct was investigatory in design and purpose.” Ramey, 2020-NMCA-041, ¶ 24 (internal quotation marks and citation omitted). Although Defendant argues on appeal that Officer Jaimes lacked reasonable suspicion under the statute to stop him for a violation of
{46} With respect to Defendant‘s contention that the officers’ conduct was flagrant because they were not in the lawful discharge of their duties when Defendant was arrested, we disagree. When an officer is in the scope of their duty “societal interests dictate the protection of the officer from attack by someone who may question, albeit reasonably, the legality of the officer‘s actions.” Travison B., 2006-NMCA-146, ¶ 9. Regardless of the illegality of the officer‘s action of stopping and investigating Defendant for violating
{47} Finally, to the extent that Defendant argues that the stop was pretextual because his offer of proof demonstrates that Hobbs police officers target minority communities and Officer Jaimes has a history of stopping individuals without reasonable suspicion, therefore creating flagrant police conduct, our review of the record reveals that Defendant did not file his offer of poof until five months after the district court denied his Ochoa Motion, and he did so without a motion to reconsider the denial of his Ochoa Motion or other effort to bring these alleged facts before the district court. Therefore we do not address these grounds further. See State v. Goss, 1991-NMCA-003, ¶¶ 8-14, 111 N.M. 530, 807 P.2d 228 (declining to address the defendant‘s constitutional challenge on appeal to suppress evidence where the challenge was not included in the defendant‘s motion to suppress before the district court and there was no indication in the record that the defendant brought factual information supporting it before the district court). In sum, the third attenuation factor weighs against suppression.
{48} Applying the three attenuation factors for the new crime exception, we hold that the evidence of Defendant‘s battery, assault, and resisting, evading or obstructing charges were sufficiently attenuated and therefore admissible.9 See Tapia, 2018-NMSC-017, ¶¶ 35, 37-38 (concluding that exclusion of the evidence is unnecessary when the first factor weighs in favor of suppression but the second and third factors weigh in favor of attenuation). Further, the subsequent discovery of controlled substances and marijuana where Defendant was arrested and in the patrol vehicle where Defendant was placed are also admissible.10 Because the State argued the application of the new crime exception and Defendant was given an opportunity to respond, we, therefore, affirm the district court‘s denial of Defendant‘s motion to suppress under Ochoa as right for any reason.
{49} We reverse the district court‘s denial of Defendant‘s Foulenfont Motion to dismiss the pedestrians on roadways charge, but affirm the denial with respect to the battery, assault, and resisting, evading or obstructing charges. Further, we affirm the district court‘s denial of Defendant‘s Ochoa Motion. We remand to the district court for further proceedings consistent with this opinion.
{50} IT IS SO ORDERED.
JACQUELINE R. MEDINA, Judge
WE CONCUR:
J. MILES HANISEE, Chief Judge
JENNIFER L. ATTREP, Judge