State v. Wacey C.

2004 NMCA 029, 86 P.3d 611, 135 N.M. 186
CourtNew Mexico Court of Appeals
DecidedJanuary 15, 2004
DocketNo. 23,386
StatusPublished
Cited by12 cases

This text of 2004 NMCA 029 (State v. Wacey C.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wacey C., 2004 NMCA 029, 86 P.3d 611, 135 N.M. 186 (N.M. Ct. App. 2004).

Opinion

OPINION

PICKARD, Judge.

{1} Child appeals the judgment and disposition resulting from his probation revocation. He argues that a condition of his probation that requires him to “stay away from the communities of Cloudcroft and Cox Canyon” is impermissible because it amounts to banishment. He also argues that his detention during the time between his dismissal from Mesilla Valley Hospital and his admittance into Sequoyah Adolescent Treatment Center (Sequoyah) was cruel and unusual punishment in violation of the New Mexico Constitution. We hold that the geographical and temporal limitations of the probation condition do not bring it within the realm of banishment. We also hold that Child’s detention was not cruel and unusual punishment. Accordingly, we affirm.

FACTS AND PROCEDURE

{2} Beginning in October 2001, Child engaged in a long series of criminal activities centered in the community of Cloudcroft, New Mexico. At times working with his brother and another juvenile, he broke into the Cox Canyon Fire Department, stole a fire truck, and damaged the fire truck extensively. He and the others broke into the local museum and stole valuable artifacts and antique firearms. He broke into the home of a Cloudcroft resident, brandished a deadly weapon, threatened the woman’s life, and stole her firearm. He also carried a Swiss Army knife to school. The State filed a delinquency petition alleging unlawful taking of a motor vehicle, conspiracy, burglary, aggravated burglary, larceny, and carrying a deadly weapon on school premises. Child pleaded no contest.

{3} At the hearing on this petition, several other serious concerns emerged regarding Child’s activities. The father of Frank M., one of Child’s co-conspirators, testified that Child had threatened Frank M. repeatedly over the course of a year. Frank M. was in protective custody at the time. The juvenile probation officer (JPO) testified that each of Child’s crimes appeared to be part of a larger scheme to amass weapons in order to commit armed robbery at the Inn of the Mountain Gods and the Mescalero tribal store. The JPO stated that Child had also alluded to “taking over a reservation in a militia fashion.” The JPO also testified that other community members had reported threats from Child and that some residents had taken to carrying a loaded firearm to protect themselves from Child. In addition, the police had not yet recovered one of the stolen firearms. At the end of the hearing, the court ordered Child to undergo evaluation at the Youth Diagnostic and Development Center (YDDC) in Albuquerque. Citing concerns about Child’s threats to Frank M., the missing weapon, and the Child’s larger criminal schemes, the court ordered detention prior to Child’s admittance into YDDC.

{4} After YDDC completed Child’s evaluation, the court held another hearing in April 2002 to determine the final disposition and judgment. The State noted the seriousness of Child’s diagnoses and argued that Child should receive long-term residential treatment at a highly structured program like Sequoyah. The JPO stated that a less restrictive placement, like Mesilla Valley Hospital, would be appropriate if a more restrictive option would still be available in the future if necessary. Child argued for probation without institutionalization. The court adopted the JPO’s recommendation of starting treatment at Mesilla Valley Hospital and leaving open the option of Sequoyah. The court then heard from the JPO and the State’s attorney, who both recommended that Child be kept away from Cloudcroft and nearby Cox Canyon. The court asked whether this would be a hardship for the family, who had by that time moved from Cloudcroft to the Mescalero reservation, and Child’s attorney stated that there was no objection. The judgment and disposition ordered Child to be placed on probation that included the conditions that Child would “successfully complete the residential treatment program most appropriate to his needs,” attend school, have no contact with his victims, “stay away from the communities of Cloudcroft and Cox Canyon,” pay restitution for damage to the fire truck, and apologize to those victims who desired an apology.

{5} Child was admitted to Mesilla Valley Hospital for treatment. Within nine days of his admittance, the hospital reported that Child had violated the terms of his probation by hitting a peer and threatening to strangle him in his sleep and stab him with a pencil. Child had also “become actively homicidal toward all African-Americans.” An arrest warrant was issued the next day, based on Child’s probation violation. The State petitioned to revoke Child’s probation and moved that Child be detained, citing as probable cause that Child would commit injury to others or be subject to injury by others if he were not detained. After a hearing, the court entered a new judgment and disposition on July 1, 2002, ordering Child to be placed on probation subject to his completion of the residential treatment program at Sequoyah and subject to all the other conditions of the April disposition. The July disposition also ordered Child to remain in detention “pending transportation ... to the treatment center if accepted.” Child appeals from this order.

ISSUE ONE: Banishment

{6} Child argues that the condition of his probation requiring him to “stay away from the communities of Cloudcroft and Cox Canyon” for the duration of his probation amounts to banishment. The issue of whether this probation condition constitutes banishment is an issue of law that we review de novo. See State v. Galaz, 2003-NMCA-076, ¶ 4, 133 N.M. 794, 70 P.3d 784 (using a de novo standard to decide the issue of whether bullets constituted a “firearm” or “deadly weapons” in the context of a probation condition).

{7} “When the trial court orders a defendant to leave a broad geographical region, often characterized as banishment, appellate courts have routinely invalidated this condition.” State v. Charlton, 115 N.M. 35, 38, 846 P.2d 341, 344 (Ct.App.1992). We have struck down banishment provisions in three cases — a sentence that required the defendant to leave New Mexico and never return without prior permission from the court, id. at 37-38, 846 P.2d at 343-44, a probation order conditioned on the defendant’s leaving the United States, State v. Pando, 1996— NMCA-078, ¶ 21, 122 N.M. 167, 921 P.2d 1285, and a probation condition that required the defendant to leave the United States and “NEVER return except in a lawful manner,” State v. Andrade, 1998-NMCA-031, ¶ 32, 124 N.M. 690, 954 P.2d 755 (internal quotation marks omitted). All of these decisions were premised on the notion that banishment is contrary to public policy because it has questionable rehabilitative value and it may cause friction among the states. Charlton, 115 N.M. at 38, 846 P.2d at 344. The issue of whether the policy against banishment requires us to strike down a less restrictive probation condition, prohibiting the probationer from entering a small geographic area within the state, is one of first impression.

{8} Other jurisdictions have held that banning criminal defendants from limited geographical areas does not amount to illegal banishment.

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Cite This Page — Counsel Stack

Bluebook (online)
2004 NMCA 029, 86 P.3d 611, 135 N.M. 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wacey-c-nmctapp-2004.