State v. Martinez

• Court: New Mexico Court of Appeals
• Decided: February 15, 2012
• Docket: 31,242
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellant,

4 v. NO. 31,242

5 JOSEPH MARTINEZ,

6 Defendant-Appellee.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Denise Barela Shepherd, District Judge

9 Gary K. King, Attorney General 10 Margaret McLean, Assistant Attorney General 11 Joel Jacobsen, Assistant Attorney General 12 Santa Fe, NM

13 for Appellant

14 Bregman & Loman, P.C. 15 Eric Loman 16 Albuquerque, NM

17 for Appellee

18 MEMORANDUM OPINION

19 VANZI, Judge. 1 The State appeals from a district court’s order suppressing the evidence

2 discovered from a warrantless search of Defendant’s home and suppressing statements

3 made by Defendant and an alleged victim. We issued a notice of proposed summary

4 disposition, proposing to affirm. Defendant filed a memorandum in support. The

5 State filed a response, indicating that it does not wish to pursue the issues contained

6 in the docketing statement. [Response 1-4] Instead, the State asks this Court to limit

7 the effect of the order suppressing the alleged victim’s statements on the victim’s right

8 to freely testify in any future proceeding. [Response 5-10] For the reasons that follow,

9 we deny the State’s request and affirm.

10 The State does not contend that the alleged victim’s testimony was wrongfully

11 excluded, as it did in its docketing statement. [DS 6] Rather, the State complains that

12 the suppression order is ambiguous with regard to the basis for suppressing the alleged

13 victim’s testimony and, therefore, may “become a source of vexatious and difficult

14 litigation.” [Response 6] The State asks us to prevent the possibility that res judicata

15 or collateral estoppel principles could limit the victim’s right to provide testimony in

16 future proceedings against Defendant. [Response 7-10]

17 These matters were not raised in the district court and, therefore, are not

18 properly before us on appeal. See In Re Aaron L., 2000-NMCA-024, ¶ 10, 128 N.M.

19 641, 996 P.2d 431 (stating that, on appeal, the reviewing court will not consider issues

2 1 not raised in the trial court unless the issues involve matters of fundamental error).

2 Moreover, the State’s request in effect asks this Court to issue an advisory opinion

3 “that would have no practical effect on the current litigation . . . and resolve a

4 hypothetical situation that may or may not arise.” City of Sunland Park v. Harris

5 News, Inc., 2005-NMCA-128, ¶ 50, 138 N.M. 588, 124 P.3d 566 (internal quotation

6 marks and citation omitted). We deny the State’s request.

7 For the reasons stated in our notice, we affirm the district court’s suppression

8 of the evidence.

9 IT IS SO ORDERED.

10 __________________________________ 11 LINDA M. VANZI, Judge

12 WE CONCUR:

13 _________________________________ 14 JAMES J. WECHSLER, Judge

15 _________________________________ 16 JONATHAN B. SUTIN, Judge