The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23- 112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.
2 Opinion Number: __________________
3 Filing Date: June 30, 2022
4 NO. S-1-SC-38743
6 Plaintiff-Petitioner,
7 v.
9 Defendant-Respondent.
11 Courtney B. Weaks, District Judge
12 Presiliano Raúl Torrez, District Attorney 13 James W. Grayson, Deputy District Attorney 14 Albuquerque, NM
15 for Petitioner
16 Bennett J. Baur, Chief Public Defender 17 Kimberly M. Chavez Cook, Appellate Defender 18 Noah Walker Gelb, Assistant Appellate Defender 19 Santa Fe, NM
20 for Respondent
2 VIGIL, Justice.
3 {1} When one of our district court judges is asked to decide whether a person
4 charged with committing a felony will be jailed pending trial, that judge must predict
5 what that person’s future behavior will be if released. But “there is no way to
6 absolutely guarantee that any defendant released on pretrial conditions will not
7 commit another offense.” State v. Brown, 2014-NMSC-038, ¶ 54, 338 P.3d 1276.
8 To reduce the margins of error, this inexact, consequential task demands that the
9 judge be given as much information as possible prior to making a decision. State ex
10 rel. Torrez v. Whitaker, 2018-NMSC-005, ¶ 103, 410 P.3d 201. This allows for an
11 informed decision to be made that not only protects the dignity and constitutional
12 rights of the accused, but it also protects society. See N.M. Const. art. II, § 13.
13 {2} Here, the State failed to meet its evidentiary burden to place Defendant, Jesse
14 Mascareno-Haidle, in pretrial detention. The State asks us to clarify the standard it
15 must meet in order for the district court to grant pretrial detention. Specifically, the
16 State challenges the requirement that it must prove that there are no release
17 conditions that will reasonably protect the safety of any other person or the
18 community if Defendant were released. Thus the State requests that it be allowed to
19 present less, not more, information to a judge attempting to predict what a person’s 1 future behavior will be. We decline the State’s request and adhere to our order issued
2 after oral argument upholding the Court of Appeals’ affirmance of the district court’s
3 denial of pretrial detention. Having failed to meet the burden or preserve the issue,
4 the State cannot be heard to complain. We write to explain our reasoning and
5 rationale.
7 {3} On January 29, 2021, Detective J. Allred of the Albuquerque Police
8 Department filed a criminal complaint-arrest warrant which chronicled his efforts to
9 investigate a series of residential burglaries in Albuquerque. The affidavit recites the
10 following.
11 {4} A homeowner reported that on October 3, 2020, at approximately 3:30 a.m.,
12 a vehicle was stolen from his home using keys taken from inside the home while he
13 and his family were sleeping. The intruder gained entry through a window facing the
14 backyard, which was easily accessible from the street behind the home. A latent print
15 impression from the window was obtained, and police determined that it matched a
16 known fingerprint of Defendant. A second homeowner reported her home was
17 burglarized overnight while her family was sleeping inside on November 19, 2020.
18 There was no sign of forced entry. Entry was presumed to be from an unlocked back
19 door, which the departing intruder had left wide open. The home backs directly onto
2 1 a recreation trail and arroyo, granting easy access to that back door. One of the items
2 stolen was an Xbox with a unique serial number, and investigation disclosed that
3 Defendant sold that Xbox to a pawnshop on December 2, 2020. On the basis of the
4 evidence identifying Defendant in connection with these two incidents, Defendant
5 was charged with one count of residential burglary, one count of unlawful taking of
6 a motor vehicle, and one count of receiving/transferring stolen property (over $250,
7 less than $500).
8 {5} In January 2020, after investigating five other residential burglaries, Detective
9 Allred concluded he was investigating a serial burglary case with common features:
10 the burglaries occurred during the overnight hours while the occupants were
11 sleeping, and entry was gained through an open window or door in the back of the
12 home which was easily accessible by a main street or open space. Detective Allred
13 began researching databases and dispatch call records of home burglaries that he
14 knew of and that were reported as having occurred in the early morning hours. He
15 discovered over eighty separate burglaries having taken place in Albuquerque in the
16 middle of the night while the occupants were sleeping. In many of the cases, cars
17 were stolen. Some homeowners had videos showing two or three burglars, and in all
18 of them (except one) the burglars wore masks. Detective Allred also investigated six
19 additional cases from Los Lunas which he believed involved the same suspects. The
3 1 remainder of Detective Allred’s affidavit details both his investigation of seven
2 specific burglaries with similar patterns and his investigation of Defendant, who was
3 eighteen at the time, and two of his associates. The investigation also involved
4 automobiles, stolen from burglarized homes, which ended up being parked or
5 abandoned near Defendant’s home.
6 {6} Defendant was arrested on January 29, 2021, the day the criminal complaint-
7 arrest warrant affidavit was filed. On the next day, the State filed a motion for pretrial
8 detention pursuant to Article II, Section 13 of the New Mexico Constitution and Rule
9 5-409 NMRA. To support its motion, the State presented Detective Allred’s criminal
10 complaint-arrest warrant affidavit, the pretrial services public safety assessment
11 (PSA)1 recommending that Defendant be released on his own recognizance, the
1 The PSA, developed by Arnold Ventures, is a multi-factor risk assessment tool that measures a defendant’s risk—if released prior to trial—of failing to appear for judicial proceedings and engaging in new criminal activity or new violent criminal activity. See The University of New Mexico, Bernalillo Cnty. Pub. Safety Assessment Validation Study, 2 (June 2021), https://isr.unm.edu/reports/2021/bernalillo-county-public-safety-assessment- validation-study.pdf. The PSA’s evaluative factors range from a defendant’s present age and the violent nature, if any, of the charged offenses, to various aspects of a defendant’s prior convictions and failures to appear, if any. Id. at 7; id. at 10, 22 (finding, inter alia, the PSA scores compiled in over 10,000 cases emanating from the risk assessment pilot program previously approved by this Court for use in the Second Judicial District to be “good” predictive indicators of new criminal activity and “fair” predictive indicators of new violent criminal activity).
4 1 results of a criminal history search pertaining to Defendant, and the register of
2 actions in the case.
3 {7} A hearing on the motion for pretrial detention was held on February 3, 2021.
4 The State rested its entire detention case on the foregoing documents. Noticeably
5 lacking was any testimony from Detective Allred and any argument that no
6 conditions of release could protect the community from Defendant if he were
7 released. The district court judge denied detention. The district court judge found
8 “that the magnitude of the allegations are inherently dangerous” but “that the State
9 has failed to prove by clear and convincing evidence that no release conditions will
10 reasonably protect the safety of another person or the community.” Defendant was
11 ordered to be released subject to conditions, including: pretrial services supervision
12 and compliance with all of its conditions, not to possess any firearms or dangerous
13 weapons, not to return to the location of any of the alleged crimes, not to consume
14 alcohol, not to buy or sell or consume or possess illegal drugs, to notify the court of
15 any change of address, not to leave Bernalillo County without prior permission of
16 the court, to maintain weekly contact with his attorney, and not to leave his residence
17 between the hours of 6:00 p.m. and 8:00 a.m. without prior permission of the court.
18 The order setting conditions of release was filed on the day of the detention hearing,
19 February 3, 2021.
5 1 {8} Two days later, the State filed a second criminal complaint-arrest warrant
2 affidavit signed by Detective Allred. These charges were based on facts that were
3 also alleged in the criminal complaint-arrest warrant affidavit describing Detective
4 Allred’s investigation of a residential burglary taking place on December 16, 2020,
5 in which two violins and a Lexus SUV were stolen while the occupants of the home
6 slept. The charges were larceny (over $20,000), conspiracy to commit a second-
7 degree felony, residential burglary, unlawful taking of a motor vehicle, two counts
8 of conspiracy to commit a third- or fourth-degree felony, and contributing to the
9 delinquency of a minor.
10 {9} The State filed a second motion for pretrial detention pursuant to Article II,
11 Section 13 of the New Mexico Constitution and Rule 5-409. As with the first motion,
12 the State supported its second motion with Detective Allred’s second criminal
13 complaint-arrest warrant affidavit, an updated pretrial services PSA that again
14 recommended Defendant’s release on his own recognizance, the results of a criminal
15 history search, and the register of actions in the case. An arrest warrant was issued,
16 and on February 12, 2021, Defendant was arrested at his home—his required
17 location under the existing conditions of his release.
18 {10} At the hearing on its second motion for detention, which was held before a
19 different district court judge, the State presented testimony of Detective Allred.
6 1 Detective Allred disclosed that after the initial motion for detention was denied, he
2 and the prosecutor agreed they could move forward with certain charges “right
3 away.” They wanted to file new charges, so they could get another chance to obtain
4 an order detaining Defendant pretrial. Their concern, “based on the circumstances
5 surrounding the magnitude of these burglaries,” was that Defendant would reoffend
6 if not in custody.
7 {11} When Defendant was originally arrested on January 29, 2021, he was
8 cooperative and gave Detective Allred a two-hour recorded statement. Based on his
9 notes at the time of the interview, Detective Allred estimated that Defendant
10 admitted to committing around twenty-eight specific burglaries. Defendant
11 specifically admitted committing the burglaries underlying the charges set forth in
12 both of the pending criminal complaints. Defendant also identified his two
13 accomplices. Defendant said that he committed the burglaries because, due to the
14 COVID-19 pandemic, he was not able to work to support his daughter. Defendant
15 was clear that he targeted homes in well-to-do neighborhoods or “rich houses,”
16 where the people could afford to replace the things that were stolen. Defendant was
17 not able to remember some burglaries, and there were others that he absolutely
18 denied committing, including the Los Lunas burglaries.
7 1 {12} The sum of the burglaries Defendant admitted to committing, together with
2 those Detective Allred suspected Defendant of committing, was between seventy-
3 five and eighty in Albuquerque. Detective Allred added that a shotgun was found in
4 a search of Defendant’s home. In addition, the police found at the home of one of
5 Defendant’s accomplices a Glock handgun and the suppressor for an AR-15 (but not
6 the AR-15 itself) that was stolen in one of the Los Lunas burglaries. Finally, the
7 State presented evidence that two years prior, Defendant, a juvenile at the time, was
8 caught committing a burglary with another juvenile.
9 {13} Defendant’s witness at the second detention hearing was Jessica Etoll, a
10 licensed master social worker for the Law Offices of the Public Defender. She had
11 scheduled an assessment with Defendant which did not take place due to his second
12 arrest, but she spoke with Defendant on the day of the second hearing. Defendant
13 was able and willing to work with her, and they came up with a plan for his release.
14 The plan was for Defendant to live with his mother and two younger siblings and to
15 work with his mother in an inventory collecting business. Ms. Etoll would also be
16 assisting Defendant in obtaining his GED. Defendant needed to be involved with his
17 seventeen-month-old child, so Ms. Etoll would not only be helping Defendant but
18 she would also be helping his family. She stressed that it was important for
19 Defendant to meet with her in person so she could continue with a needs assessment.
8 1 {14} The district court then heard arguments from both sides. The State began its
2 argument by reciting its evidentiary burden as mandated by Article II, Section 13 of
3 the New Mexico Constitution: “So the State is arguing for pretrial detention, that
4 [Defendant] is a danger to the community and that there are no release conditions
5 that will reasonably protect the safety of the community or any other person.” This
6 passing, generic reference to “release conditions” was the only time the State
7 mentioned the subject during the entire hearing. The State failed to present evidence
8 that no conditions or combination of conditions could be imposed to reasonably
9 protect the community if Defendant was released. Moreover, the State neither argued
10 nor provided any assertion that conditions of release sufficient to reasonably protect
11 public safety could not be imposed. Instead, the State focused its argument solely on
12 the dangerousness component of the detention determination, drawing the district
13 court’s attention to Detective Allred’s account of Defendant’s alleged admission to
14 committing multiple burglaries and the State’s concern that the burglaries involved
15 “some firearm connection.”
16 {15} The defense centered its argument on the State’s failure to present evidence
17 at both detention hearings: “[T]he State provided zero evidence as to whether or not
18 [Defendant] can abide by conditions of release.” Defense counsel pointed to
19 Defendant’s compliance with the release conditions imposed in the initial release
9 1 order, including Defendant’s apparent adherence to the order’s curfew requirements
2 as reflected in the ease by which the police rearrested Defendant at his mother’s
3 residence during evening hours covered by the court-ordered curfew. Defense
4 counsel asked the district court to release Defendant under the same conditions that
5 were previously imposed following the first detention hearing.
6 {16} Announcing its decision at the conclusion of the hearing, the district court
7 stressed, “There’s nothing more dangerous and—and more invasive than entering
8 somebody’s home through an unlocked door in the middle of the night. That is the
9 most dangerous activity that you can engage in. I want to make that extremely clear.
10 The extent of this is alarming—beyond alarming.” However, based on the fact that
11 the motion for detention was previously denied and that a period of time albeit short
12 had passed, and no homes were burglarized in the interim, the district court
13 concluded that “conditions of release can be fashioned in which the [c]ourt feels that
14 they can prevent [Defendant] from committing future crime and protect the safety
15 of the community.”
16 {17} A formal order was entered in which the district court found Defendant to be
17 dangerous, but because “the State having again failed to provide by clear and
18 convincing evidence that no conditions of release will reasonably protect the safety
19 of another person or the community” and because “a good faith argument cannot be
10 1 made against release on conditions of release when the request for pretrial detention
2 was already once denied and Defendant was without violation after that release,” the
3 State’s second motion for detention was denied. Defendant was ordered to be
4 released subject to the original conditions with the added requirements that he live
5 at home, submit to drug and alcohol testing, maintain thirty hours of weekly
6 employment, submit to medical, psychological, psychiatric or substance abuse
7 treatment, and comply with geographical restrictions by GPS monitoring.
8 {18} The State appealed to the Court of Appeals, which summarily affirmed the
9 district court’s order, and we granted certiorari. See Rule 12-204 (D), (E) NMRA.
11 {19} The State’s petition for certiorari reminds us that in State v. Ferry, 2018-
12 NMSC-004, ¶ 6, 409 P.3d 918, we held “that the nature and circumstances of a
13 defendant’s conduct in the underlying charged offense(s) may be sufficient, despite
14 other evidence, to sustain the State’s burden of proving by clear and convincing
15 evidence that the defendant poses a threat to others or the community.” The State
16 then declares, “The Court did not address whether this same evidence may be
17 sufficient, by itself, to sustain the State’s burden to prove that no release conditions
18 will reasonably protect the safety of the community.” The State appeals to this Court
19 to answer that question.
11 1 A. Standard of Review
2 {20} A district court’s decision addressing pretrial release or detention issues will
3 be set aside only upon a showing that the decision (1) “is arbitrary, capricious, or
4 reflects an abuse of discretion,” (2) “is not supported by substantial evidence,” or (3)
5 “is otherwise not in accordance with law.” Rule 12-204(D)(2)(b). “An abuse of
6 discretion occurs when the court exceeds the bounds of reason, all the circumstances
7 before it being considered.” Brown, 2014-NMSC-038, ¶ 43 (internal quotation
8 marks and citation omitted); see Ferry, 2018-NMSC-004, ¶ 2 (defining the term
9 discretion in the context of a pretrial detention appeal as “the authority of a district
10 court judge to select among multiple correct outcomes”). “Substantial evidence is
11 such relevant evidence that a reasonable mind would find adequate to support a
12 conclusion.” State v. Groves, 2018-NMSC-006, ¶ 25, 410 P.3d 193 (internal
13 quotation marks and citation omitted). And “a decision is arbitrary and capricious if
14 it is unreasonable or without a rational basis, when viewed in light of the whole
15 record.” Id. (internal quotation marks and citation omitted).
16 B. Bail Reform in New Mexico
17 {21} In Brown, 2014-NMSC-038, ¶¶ 19-38, and Torrez, 2018-NMSC-005, ¶¶ 33-
18 68, we summarized the history of bail in New Mexico and the United States. We
19 reiterate some of that history here to give context to our discussion and analysis.
12 1 {22} Beginning with statehood in 1912 and before it was amended, Article II,
2 Section 13 of the New Mexico Constitution directed in pertinent part: “All persons
3 shall be bailable by sufficient sureties . . . .” N.M. Const. art. II, § 13 (1911, amended
4 2016). In 1988, this right to bail provision was amended to read, “All persons shall,
5 before conviction be bailable by sufficient sureties . . . .”, N.M. Const. art. II, § 13
6 (1988, amended 2016); see 1988 N.M. Laws, 1st Special Session at 1120
7 (“Constitutional Amendment No. 5”), which persists today. With limited
8 exceptions,2 our Constitution has guaranteed all persons accused of committing
9 crimes the right to bail and release pending trial. This was also true for almost every
10 state constitution adopted after 1776, and at the federal level by the Judiciary Act of
11 1789, ch. 20, § 33, 1 Stat. 73. Brown, 2014-NMSC-038, ¶¶ 26-27. The constitutional
12 right to bail upholds the fundamental principle that a defendant is not to be
2 The first phrase of the current exceptions to the constitutional right to bail, “for capital offenses when the proof is evident or the presumption great,” was present at statehood; the 1980 constitutional amendment added the second phrase of the current exceptions, “in situations in which bail is specifically prohibited by this section.” N.M. Const. art. II, § 13 (1911, 1980, amended 2016); see 1979 N.M. Laws, 1st Regular Session at 2003 (“Constitutional Amendment 3”). The 1980 constitutional amendment also added the only two additional specific exceptions to the right to bail: when (1) the defendant was charged with “a felony and ha[d] previously been convicted of two or more felonies, within the state” and (2) the defendant was charged with “a felony involving the use of a [firearm] and ha[d] a prior felony conviction, within the state,” neither of which the 2016 amendment retained. N.M. Const. art. II, § 13 (1980, amended 2016).
13 1 punished—imprisoned—until the charges brought by the state are proven beyond a
2 reasonable doubt in a court of law. See id. ¶ 19. Thus the original purpose of bail in
3 New Mexico was to ensure that the defendant appeared in court as required. Id. ¶ 38.
4 Upon release, a defendant’s pretrial freedom was conditioned on appearing in court
5 as required, complying with the law, and complying with any conditions of release
6 imposed by the court. Id. ¶ 21. A defendant’s failure to satisfy any of these conditions
7 could result in revocation of the release and a remand of the defendant into custody.
8 Id.
9 {23} Subsequently, studies of bail in the United States recognized inequities, chief
10 among which was that money bail discriminated against the poor. Id. ¶¶ 28-32.
11 Indigent defendants who were unable to post bail were therefore imprisoned—
12 punished—solely because they could not afford to post bail or pay commercial
13 bondsmen to secure their release pending trial. Id. These concerns motivated
14 Congress to enact the Bail Reform Act of 1966, Pub. L. No. 89-465, 80 Stat. 214,
15 the first major federal reform since the Judiciary Act of 1789. Brown, 2014-NMSC-
16 038, ¶ 33. Under this act, release on personal recognizance was the presumptive
17 norm, unless the judge “determined that such release [did] not reasonably assure the
18 defendant’s appearance in court,” in which case the judge would determine a
19 “conditional pretrial release under supervision or other terms” designed to
14 1 reasonably assure the defendant’s appearance and decrease the risk of flight. Id. ¶
2 33.
3 {24} However, the 1966 act did not account for or recognize circumstances in
4 which a defendant posted bond and was released but was a danger to another person
5 or the community. Id. ¶ 34. This was addressed by Congress in the Bail Reform Act
6 of 1984, which retains many of the key provisions of the 1966 act but at the same
7 time “allows a federal court to detain an arrestee pending trial if the Government
8 demonstrates by clear and convincing evidence after an adversary hearing that no
9 release conditions ‘will reasonably assure . . . the safety of any other person and the
10 community.’” United States v. Salerno, 481 U.S. 739, 741, (1987) (omission in
11 original) (quoting the Bail Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837);
12 see Brown, 2014-NMSC-038, ¶ 34.
13 {25} Our first bail rules were adopted in 1972. Brown, 2014-NMSC-038, ¶ 37.
14 Modeled on the federal 1966 act, the rules normalized a presumption of pretrial
15 release by the least restrictive conditions, emphasizing that they should not require
16 financial security. Id. With the passage of the federal 1984 act, our rules added that
17 the court, in fashioning conditions of release, was also required to consider the
18 potential danger to the community caused by the defendant’s release. Id. ¶ 38.
15 1 Nevertheless, a presumption of pretrial release under the least restrictive conditions
2 remained the normative presumption. Id. ¶¶ 39-41.
3 {26} In 2016, for the first time since statehood, a constitutional amendment was
4 passed which granted judicial authority to deny a defendant pretrial release. Torrez,
5 2018-NMSC-005, ¶ 1. In pertinent part, Article II, Section 13 of the New Mexico
6 Constitution now states, “Bail may be denied by a court of record pending trial for a
7 defendant charged with a felony if the prosecuting authority requests a hearing and
8 proves by clear and convincing evidence that no release conditions will reasonably
9 protect the safety of any other person or the community.”
10 C. The Requirements for Pretrial Detention
11 {27} In order to subject a presumed-innocent defendant to pretrial detention, the
12 state is required to prove “by clear and convincing evidence that (1) the defendant
13 poses a future threat to others or the community, and (2) no conditions of release
14 will reasonably protect the safety of another person or the community.” Ferry, 2018-
15 NMSC-004, ¶ 3; Torrez, 2018-NMSC-005, ¶¶ 100, 102. That is the shared mandate
16 of our New Mexico Constitution, court rules, and case law. See N.M. Const. art. II,
17 § 13; Rule 5-409; Ferry, 2018-NMSC-004, ¶ 3; Torrez, 2018-NMSC-005, ¶¶ 100,
18 102.
16 1 {28} In keeping with the presumption of innocence that attaches to all defendants
2 prior to conviction, and with the related maxim that “punishment should follow
3 conviction, not precede it,” Sewall v. Eighth Jud. Dist. Ct. ex rel. Cnty. of Clark, 481
4 P.3d 1249, 1253 (Nev. 2021) (internal quotation marks and citation omitted), our
5 Constitution requires the state to be held to an exacting standard when it asks a court
6 to order a defendant to remain jailed while awaiting trial. See N.M. Const. art. II, §
7 13. Proof by clear and convincing evidence represents that standard, one satisfied
8 only by “evidence that instantly tilts the scales in the affirmative when weighed
9 against the evidence in opposition and the fact finder’s mind is left with an abiding
10 conviction that the evidence is true.” Groves, 2018-NMSC-006, ¶ 36 (brackets,
11 internal quotation marks, and citation omitted).
12 {29} Although the clear and convincing evidence threshold is a “heavy burden,”
13 State v. Lara, 1990-NMCA-075, ¶ 24, 110 N.M. 507, 797 P.2d 296, it is by no means
14 beyond reasonable reach. In practical terms, the evidentiary burdens imposed on the
15 state at a pretrial detention hearing are considerably less severe than those the state
16 faces at trial. In this respect, our case law and court rules afford the state considerable
17 flexibility and ease in presenting its case for detention by (1) dispensing with the
18 rules of evidence, Rule 5-409(F)(5), (2) declining to extend a defendant’s
19 constitutional confrontation rights to a detention hearing, Torrez, 2018-NMSC-005,
17 1 ¶¶ 45, 89, 91, and (3) not imposing any categorical requirement for live-witness
2 testimony, id. ¶¶ 80-95, 110; Ferry, 2018-NMSC-004, ¶ 3 (endorsing the use in
3 detention hearings of live testimony or a “proffer [of] documentary evidence in a
4 form that carries sufficient indicia of reliability”). The state, far from being bound
5 by all the requirements of the Constitution and the rules of evidence, may rely on
6 “all helpful and reliable information” at its disposal, Torrez, 2018-NMSC-005, ¶
7 103, to establish to the court’s satisfaction, under the clear and convincing standard,
8 that no conditions of release will reasonably protect the public against a defendant’s
9 future dangerousness. This lenient evidentiary burden persists even though a
10 defendant detained while awaiting trial—and innocent until proven guilty—will be
11 subjected to conditions of confinement identical to those imposed on a defendant
12 proven guilty beyond a reasonable doubt at trial.
13 {30} The state’s burden of proving the first element required to obtain pretrial
14 detention has been considerably lessened. The state may rely solely on “the nature
15 and circumstances of a defendant’s conduct in the underlying charged offense(s)” as
16 sufficient to prove by clear and convincing evidence that a defendant is dangerous—
17 that is, “that the defendant poses a [future] threat to others or the community.” Ferry,
18 2018-NMSC-004, ¶ 6. Thus the state, the prosecuting authority that decides which
18 1 offenses to charge the defendant with in the first place, may now rely on those same
2 charges for proof of dangerousness. Id.
3 {31} However, we also emphasized in Ferry that even if this initial burden is
4 satisfied, “the State must still prove by clear and convincing evidence, under Article
5 II, Section 13, that ‘no release conditions will reasonably protect the safety of any
6 other person or the community.’” Ferry, 2018-NMSC-004, ¶ 6. Here, the State’s
7 burden of proving this second element required for pretrial detention cannot be
8 lessened. It is the constitutional standard mandated by Article II, Section 13. We
9 have already noted that the State failed to produce any evidence or make any
10 argument that no release conditions could be imposed to reasonably protect the
11 safety of any other person or the community. “We are not oblivious to the pressures
12 on our judges who face election difficulties, media attacks, and other adverse
13 consequences if they faithfully honor the rule of law when it dictates an action that
14 is not politically popular.” Brown, 2014-NMSC-038, ¶ 54. Even so, under the
15 Constitution and our rules, the district court judge in this case was left with no
16 alternative but to deny the State’s motion to detain Defendant. This legal dictation
17 to which the district court judge adhered is not some new revelation. Since 2017,
18 Rule 5-409(H) has directed that “[t]he court shall deny the motion for pretrial
19 detention if, on completion of the pretrial detention hearing, the court determines
19 1 that the prosecutor has failed to prove the grounds for pretrial detention by clear and
2 convincing evidence.”
3 {32} Recognizing that it failed (twice) to make its case, the State now asks us to
4 ignore the explicit mandate of the Constitution and our rules and hold that the nature
5 and circumstances of a defendant’s conduct in the underlying charged offense(s)
6 may be sufficient, by itself, to sustain the State’s burden to prove that no release
7 conditions will reasonably protect the safety of the community.
8 D. The State’s Misplaced Reliance on a Single Factor as Dispositive of the 9 State’s Detention Burden
10 {33} We now turn to the core of the State’s appeal, its contention that the “extreme”
11 nature of Defendant’s “lawlessness” evidenced a “habitual wanton disregard for the
12 law and for homeowner safety,” a circumstance that, in the State’s view, is
13 incompatible with a finding that a combination of release conditions could provide
14 an adequate deterrent to further dangerous criminal conduct. As explained next, this
15 argument is both unpreserved for appellate review and lacking in merit.
16 {34} As for preservation, at the detention hearing giving rise to this appeal, the
17 State failed to make any argument to the district court judge that no release
18 conditions could be imposed that would reasonably protect the safety of any other
19 person or the community, and the State never invoked a ruling from the district court
20 judge on the issue that it now raises on appeal. See Rule 12-321(A) NMRA In fact,
20 1 this Court expressed its concern regarding the State’s failure to argue to the district
2 court that no conditions of release would be sufficient to protect the community from
3 Defendant. The State conceded that it was required to make the argument and
4 acknowledged that its arguments to the district court only “focused on
5 dangerousness.” This familiar preservation principle takes on particular significance
6 in the context of pretrial detention hearings. After all, rulings stemming from
7 detention hearings are by their nature high-stakes endeavors fraught with
8 uncertainty; rulings made all the more challenging by the short deadlines governing
9 their issuance. See Rule 5-409(G), (H) (requiring the district court to issue an order
10 granting or denying a detention motion upon the completion of the detention hearing
11 and to file “findings of the individualized facts” justifying its ruling “no later than
12 three (3) days after the conclusion of the hearing”). Considering the demanding
13 nature of the district judges’ role in deciding pretrial detention motions, it is
14 incumbent on the prosecuting attorney and defense counsel alike to clearly stake out
15 their respective hearing positions on the record. The interests of justice—and of
16 fairness to all involved and to the community at large—demand no less.
17 {35} Here, when asked if there were “any other arguments as to conditions of
18 release,” the State responded, “I would ask for a GPS monitor.” The district court
19 judge then announced the updated conditions of release, including GPS monitoring,
21 1 and asked again, “Is there any other conditions of release or any other arguments
2 from [the State] or [Defendant] at this time?” The State responded, “No arguments,
3 Your Honor.” Having failed at the detention hearing giving rise to this appeal to
4 raise any argument opposing Defendant’s release on conditions, the State will not
5 now be heard to complain that the hearing’s outcome on that issue was not to its
6 liking.
7 {36} Moreover, putting such preservation issues aside, the State would not prevail
8 even were we to consider its apparent contention that the district court erred in not
9 giving dispositive effect to the nature and circumstances of Defendant’s underlying
10 conduct in gauging the likely effectiveness of potential release conditions. That
11 position is directly at odds with controlling precedent from this Court, which makes
12 clear that pretrial detention or release decisions cannot be made to turn on any single
13 factor, be it the nature and circumstances of the charged offense(s) or otherwise. See
14 Torrez, 2018-NMSC-005, ¶ 101 (“Detention decisions, like release conditions,
15 should not be based categorically on the statutory classification and punishability of
16 the charged offense.”); Brown, 2014-NMSC-038, ¶ 52 (“Neither the Constitution
17 nor our rules of criminal procedure permit a judge to base a pretrial release decision
18 solely on the severity of the charged offense.”); Ferry, 2018-NMSC-004, ¶ 7
19 (cautioning “litigants and the court” against “automatically consider[ing] any one
22 1 factor to be dispositive in pretrial detention hearings”). To allow the State to rely
2 solely on the nature and circumstances of the charged offenses, not only to prove
3 that the defendant poses a future threat to others or the community but also to prove
4 that no release conditions will reasonably protect the safety of any other person or
5 the community, would all but eliminate Article II, Section 13 and the corresponding
6 constitutional burden of the State.
7 {37} Adoption of such a rigid interpretation of Rule 5-409(F)(6) also would run
8 counter to what aptly has been described in the federal realm as the unique,
9 “factbound” nature of a court’s pretrial detention determination, which “must be
10 made individually and, in the final analysis, must be based on evidence which is
11 before the court regarding the particular defendant.” United States v. Tortora, 922
12 F.2d 880, 888 (1st Cir. 1990); see id. (“No two defendants are likely to have the
13 same pedigree or to occupy the same position.”); accord United States v. Traitz, 807
14 F.2d 322, 325-26 (3d Cir. 1986) (“Each [pretrial detention] case, of course, is sui
15 generis, and must be decided on the basis of the particular record adduced.”).
16 {38} Instead, a more expansive, broad-based approach is dictated under the
17 prevailing New Mexico court rule governing the pretrial detention process, whose
18 provisions make clear that the district court
19 shall consider any fact relevant to the nature and seriousness of 20 the danger to any person or the community that would be posed
23 1 by the defendant’s release and any fact relevant to the issue of 2 whether any conditions of release will reasonably protect the 3 safety of any person or the community.
4 Rule 5-409(F)(6) (emphases added). The rule, in Subparagraphs (a)-(g), goes on to
5 set forth a nonexhaustive list of seven factors intended to guide the parties’
6 presentation of evidence—and the resulting findings of the court—bearing on the
7 two central inquiries stated at the beginning of Subsection (F)(6) of the rule: “the
8 nature and seriousness of the danger to any person or the community that would be
9 posed by the defendant’s release” and the separate but related question of “whether
10 any conditions of release will reasonably protect the safety of any person or the
11 community.” The relevant factors specified in Rule 5-409(F)(6) are as follows:
12 (a) the nature and circumstances of the offense charged, 13 including whether the offense is a crime of violence; 14 (b) the weight of the evidence against the defendant; 15 (c) the history and characteristics of the defendant; 16 (d) the nature and seriousness of the danger to any person or 17 the community that would be posed by the defendant’s release; 18 (e) any facts tending to indicate that the defendant may or may 19 not commit new crimes if released; 20 (f) whether the defendant has been ordered detained under 21 Article II, Section 13 of the New Mexico Constitution based on a 22 finding of dangerousness in another pending case or was ordered 23 detained based on a finding of dangerousness in any prior case; and 24 (g) any available results of a pretrial risk assessment 25 instrument approved by the Supreme Court for use in the jurisdiction, 26 provided that the court shall not defer to the recommendation in the 27 instrument but shall make an independent determination of 28 dangerousness and community safety based on all information 29 available at the hearing.
24 1 {39} The first of the factors listed for consideration under this rule involves “the
2 nature and circumstances of the offense charged.” Rule 5-409(F)(6)(a). Nothing in
3 the rule suggests, however, that the placement of this factor at the top of the list of
4 other relevant factors somehow signals that singular importance can be given to it.
5 And the State offers no textual analysis in support of such an interpretation. Nor is
6 there any other basis on which to construe the rule in a manner more restrictive than
7 its literal wording and in the process allow detention judges to consider “the nature
8 and circumstances of the offense” factor in isolation and to the exclusion of all other
9 relevant factors, whether those factors are expressly identified in the rule or not. To
10 the contrary, Rule 5-409(F)(6) must be read to require a detention court to engage in
11 a delicate case-by-case balancing of all relevant factors, with the calculus limited
12 only “by what evidence the litigants present.” Ferry, 2018-NMSC-004, ¶ 7.
14 {40} For the reasons stated in this opinion, we abide by our prior order upholding
15 the Court of Appeals’ affirmance of the district court’s denial of pretrial detention.
16 {41} IT IS SO ORDERED.
17 _____________________________ 18 MICHAEL E. VIGIL, Justice
25 1 WE CONCUR:
2 3 C. SHANNON BACON, Chief Justice
4 5 DAVID K. THOMSON, Justice
6 7 JULIE J. VARGAS, Justice