State v. White

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-043

Filing Date: May 10, 2010

Docket No. 28,588

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

CORNELIUS WHITE,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Thomas J. Hynes, District Judge

Gary K. King, Attorney General
Anita Carlson, Assistant Attorney General
Santa Fe, NM

for Appellee

Robert E. Tangora, L.L.C.
Robert E. Tangora
Santa Fe, NM

for Appellant

OPINION

ROBLES, Judge.

{1} In this case, the State filed a criminal complaint in the magistrate court, charging
Defendant with felony offenses and sought to establish probable cause in a preliminary
hearing in the magistrate court. When the magistrate made a finding of no probable cause,
the State filed the same charges in the district court, which remanded that matter to the
magistrate court for a preliminary hearing. The State then succeeded in peremptorily
excusing the original magistrate from conducting the preliminary hearing. A second
magistrate listened to the tape recording of the original preliminary hearing and, without

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more evidence, made a finding of probable cause and bound Defendant to district court for
trial on the felony charges. In the district court, Defendant entered into a conditional plea
agreement, reserving his right to appeal. We hold that the procedures used by the State in
this case to obtain a finding of probable cause before a second magistrate were improper, and
we reverse Defendant’s convictions.

I. BACKGROUND

{2} Defendant was arrested on January 27, 2005, and a criminal complaint was filed in
the San Juan County Magistrate Court, charging Defendant with committing two felonies:
(1) a fourth or subsequent offense of driving while intoxicated and (2) battery on a police
officer. NMSA 1978, § 66-8-102(H) (2004) (amended 2008); NMSA 1978, § 30-22-24
(1971). A preliminary hearing was held before Magistrate Judge James Atcitty on April 6,
2005. After hearing the State’s evidence, Judge Atcitty made a finding of no probable cause
on both charges, and they were dismissed. See Rule 6-202(C) NMRA (directing that upon
completion of the preliminary hearing, if the magistrate finds “no probable cause to believe
that the defendant has committed an offense, the court shall discharge the defendant”). The
deputy district attorney, who presented the State’s case to Judge Atcitty, stated “this is one
of those cases we will refile in [d]istrict [c]ourt.”

{3} The deputy district attorney then filed a second criminal complaint in district court
on April 13, 2005, which was identical to the criminal complaint that was originally filed in
the magistrate court. The district court remanded the new case to the magistrate court for
a determination of probable cause, and the matter was assigned to Judge Atcitty. The deputy
district attorney then filed a notice of peremptory excusal in the magistrate court to
disqualify Judge Atcitty from conducting the probable cause hearing. In the magistrate
court, Defendant objected and filed a motion on May 26, 2005, seeking an order denying the
excusal of Judge Atcitty. After reciting the foregoing procedural history, Defendant’s
attorney alleged to the best of his knowledge and belief that “this [d]istrict [a]ttorney’s
[o]ffice has never filed an action in [d]istrict [c]ourt except in an attempt to [avoid]
proceeding in Judge Atcitty’s [c]ourt after having lost a [p]reliminary [h]earing; such
action[s] show a ‘bad reason’ for the action of the [p]rosecutors and acts as a [l]imitation on
their freedom to file actions in [d]istrict [c]ourt or [m]agistrate [c]ourt.” Addressing the
excusal of Judge Atcitty, Defendant asserted that “[s]uch excusal is in violation of Rule 6-
106[(C) NMRA,] which expressly provides that a party cannot excuse a [j]udge after having
that [j]udge perform a discretionary act. . . . The State may not now seek to excuse Judge
Atcitty[.]”

{4} The case was then assigned to Magistrate Judge Stacey Biel, who set the case for a
preliminary hearing on August 17, 2005. In response to Defendant’s objection and motion,
seeking an order denying the excusal of Judge Atcitty, Judge Biel filed an order remanding
the case to the district court

for [d]etermination if this matter can be the subject of a [p]eremptory excusal
of . . . Magistrate Judge Atcitty[,] given that Judge Atcitty was the original
magistrate that ruled against the State after a full preliminary hearing. The

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 State then filed the case under a new number before the [d]istrict [c]ourt
which remanded to the [m]agistrate [c]ourt for a determination of [p]robable
[c]ause.

Without conducting a hearing, the district court entered an order on December 15, 2005, that
“any San Juan County [m]agistrate [j]udge may hear the preliminary hearing in this cause.”
The case was set for a preliminary hearing before Judge Biel.

{5} When the preliminary hearing was scheduled to be held on February 15, 2006,
Defendant’s witness was not available to testify. Judge Biel therefore stated she would listen
to the tapes of the first preliminary hearing originally heard by Judge Atcitty and notify
counsel of the court’s probable cause decision. On February 22, 2006, Judge Biel ruled:

Due to the unavailability of Defendant’s witness, . . . the tapes from the
previous preliminary hearing conducted on April 6, 2005, [before Judge
Atcitty] were used. Based on the [taped] testimony presented at the
preliminary hearing conducted on April 6, 2005, [before Judge Atcitty] . . .
Defendant is bound over to [d]istrict [c]ourt to face the charges of 5th
[a]ggravated DWI (by refusal) and [b]attery on a [p]eace [o]fficer.

Judge Biel filed a bind-over order on the charges, and the deputy district attorney, who had
prosecuted the case from the beginning, filed a corresponding criminal information in the
district court on October 5, 2007.

{6} As a result of this convoluted process, the State obtained from Judge Biel in 2007,
what it had failed to obtain from Judge Atcitty in 2005—a probable cause determination on
the same evidence—that Defendant committed the two felonies originally charged—a fourth
or subsequent offense of driving while intoxicated and battery on a peace officer. Instead
of a dismissal, Defendant was now required to answer to the charges in district court. In the
district court, Defendant filed a motion to dismiss on October 11, 2007, based on the
foregoing procedural history, and a claim that he was denied his constitutional right to a
speedy trial. After the district court denied the motion, Defendant entered into a plea and
disposition agreement with the State and agreed to plead no contest to the misdemeanor of
a third DWI and petty misdemeanor battery and reserved “the right to appeal issues of
speedy trial and procedures.” The district court approved the agreement and imposed
sentence. Defendant was allowed to remain released on bond pending appeal, which he
timely took to this Court.

II. DISCUSSION

{7} Defendant makes three arguments on appeal: (1) the State is barred based upon
principles of collateral estoppel from presenting identical evidence in a second preliminary
hearing to a second magistrate after a magistrate has already determined that there is no probable
cause to bind Defendant over to district court; (2) Judge Atcitty was improperly excused under
Rule 6-106 because the State had previously requested him to perform a discretionary act by
conducting the first preliminary hearing; and (3) Defendant’s constitutional right to a speedy

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trial was violated because prosecution of the case took more than three years. We agree with
Defendant on the first two arguments presented, which we address together. We therefore do
not address Defendant’s remaining argument.

A. Standard of Review

{8} Whether a judge properly ruled on a party’s peremptory motion to excuse “presents a
mixed question of law and fact.” State v. Devine, 2007-NMCA-097, ¶ 7, 142 N.M. 310, 164
P.3d 1009. “We review the judge’s findings of historical fact using the deferential substantial
evidence standard, while we review the application of the law to those facts de novo.” Id.

B. Analysis

{9} The State first contends that the record on appeal is inadequate to consider Defendant’s
contention, and matters outside of the record cannot be reviewed on appeal. See, e.g., State v.
Telles, 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845 (filed 1998). We disagree. While
the record submitted to us does not contain the first criminal complaint filed in the magistrate
court, or Judge Atcitty’s discharge order following the first preliminary examination, the State
does not dispute that either happened. Indeed, the State cites to Judge Biel’s order remanding
to district court, which states that “Judge Atcitty was the original magistrate that ruled against
the State after a full preliminary hearing.” Additionally, there are references to the first
magistrate court proceeding, including Judge Atcitty’s determination that there was no probable
cause throughout the recorded district court hearings. Furthermore, it is beyond dispute that
Judge Biel did no more than rule based on hearing the tape of the preliminary hearing before
Judge Atcitty. As a result, the record is sufficiently complete for our review of the issue. We
therefore address the merits of Defendant’s argument.

{10} A common way to commence a felony prosecution in New Mexico is by the filing of a
complaint in the magistrate court followed by either an indictment or preliminary hearing and
information. See generally Rule 5-201(A) NMRA (providing that a criminal prosecution may
be commenced by the filing of a complaint, information, or indictment). However, the New
Mexico Constitution directs that “[n]o person shall be held to answer for a capital, felonious or
infamous crime unless on a presentment or indictment of a grand jury or information filed by
a district attorney or attorney general or their deputies[.]” N.M. Const. art. II, § 14.
Furthermore, “[n]o person shall be so held on information without having had a preliminary
examination before an examining magistrate, or having waived such preliminary examination.”
Id. Thus, whether a criminal case is commenced by the filing of a criminal complaint or
information, our constitution requires that a preliminary hearing be held before an examining
magistrate before an accused can be tried for a felony offense.

This provision of our constitution is to insure that no person is deprived of his
liberty without due process of law. Thus, a defendant cannot be held for trial
unless a preliminary hearing has been held at which time the accused is informed
of the crime charged against him and a magistrate has determined that probable
cause exists to hold him.

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State v. Coates, 103 N.M. 353, 356, 707 P.2d 1163, 1166 (1985), abrogated on other grounds
as stated in State v. Brule, 1999-NMSC-026, ¶ 3, 127 N.M. 368, 981 P.2d 782. A preliminary
hearing is considered a critical stage of the criminal proceedings against an accused, State v.
Vaughn, 74 N.M. 365, 368, 393 P.2d 711,714 (1964), and it may be held in either magistrate or
district court. Rule 5-302 NMRA; Rule 6-202 NMRA. If a complaint is filed in district court,
the district court judge may remand the matter to the magistrate court for a preliminary
examination. Rule 5-302(E). In fulfilling its constitutional role, a preliminary hearing “operates
as a screening device to prevent hasty and unwise prosecutions and to save an innocent accused
from the humiliation and anxiety of a public prosecution.” State ex. rel. Whitehead v. Vescovi-
Dial, 1997-NMCA-126, ¶ 6, 124 N.M. 375, 950 P.2d 818.

{11} At the preliminary hearing, the state is required to establish, to the satisfaction of the
examining judge, two components: (1) that a crime has been committed; and (2) probable cause
exists to believe that the person charged committed it. State v. Vallejos, 93 N.M. 387, 388, 600
P.2d 839, 840 (Ct. App. 1979). Upon making this showing of probable cause, the state is
permitted to file a criminal information, which then vests jurisdiction with the district court to
bring the accused to trial. Rule 5-201(C) (“An information shall be filed [in the district court]
within thirty (30) days after completion of a preliminary examination or waiver thereof unless
such time is extended by the court upon motion of the district attorney.”) (emphasis added);
Vaughn, 74 N.M. at 368, 393 P.2d at 714. However, “[i]f, upon completion of the examination,
it appears to the court that there is no probable cause to believe that the defendant has committed
an offense, the court shall discharge the defendant.” Rule 5-302(C).

{12} The state may choose to seek a grand jury indictment for the same offense following an
unfavorable preliminary examination. State v. Peavler, 88 N.M. 125, 126, 537 P.2d 1387, 1388
(1975). However, that is not the case before us. Instead, Defendant challenges the procedure
used by the State to obtain a finding of probable cause in an identical preliminary hearing before
a second magistrate on the same charges. Moreover, the probable cause finding in the second
preliminary hearing was based upon the verbatim, identical evidence submitted to Judge Atcitty
in the first hearing, who previously ruled there was no probable cause. Specifically, that
procedure entailed (1) the filing of a second criminal complaint in the district court; (2) a remand
of the case to the magistrate court for a probable cause hearing; (3) the filing of a peremptory
excusal against Judge Atcitty to prevent him from conducting the preliminary hearing; and (4)
presenting the same evidence to an alternate magistrate, Judge Biel, that was previously
presented at the preliminary hearing before Judge Atcitty.

{13} Rule 6-106(D) provides that, in the magistrate court, “[a] party may exercise the statutory
right to excuse the judge before whom the case is pending by filing with the clerk of the court
a notice of excusal.” NMSA 1978, § 38-3-9 (1985) (stating that a party “shall have the right to
exercise a peremptory challenge to the district judge before whom the action or proceeding is
to be tried and heard” and that after the exercise of a peremptory challenge “that district judge
shall proceed no further”). However, once a party has requested the magistrate to perform a
discretionary act, that party loses the right to excuse the judge. Rule 6-106(C) (“A party may
not excuse a judge after the party has requested that judge to perform any discretionary act other
than conducting an arraignment or first appearance, setting initial conditions of release or a
determination of indigency.”); JMB Retail Props. Co. v. Eastburn, 114 N.M. 115, 118, 835 P.2d

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831, 834 (1992) (construing the rule for peremptory excusal of a district judge in a civil case and
adopting “a bright-line standard under which the determinative issue is whether a party has
invoked the judicial discretion of the court”).

{14} The rules of criminal procedure for district courts have a similar limitation. Rule
5-106(A) NMRA states that “[a] party may not excuse a judge after the party has requested that
judge to perform any discretionary act.” Construing this rule, we have previously concluded:

[W]hen a district court decides whether probable cause exists to believe that a
defendant committed the crime charged, the court has exercised discretion for the
purposes of Rule 5-106(A). [The d]efendant’s participation in the preliminary
hearing necessarily involved the exercise of discretion on the part of [the district
court judge] because [the d]efendant could have received a favorable ruling
dismissing the charges against [the defendant] if [the judge] viewed the facts in
a particular way, which would have been within his discretion.

Devine, 2007-NMCA-097, ¶ 18. The discretion exercised by a magistrate in making a probable
cause determination at a preliminary hearing is no different. Compare Rule 5-302(C) (“If the
[district] court finds that there is probable cause to believe that the defendant committed an
offense, it shall bind the defendant over for trial.”) with Rule 6-202(C)(2) (“If the [magistrate]
court finds that there is probable cause to believe that the defendant committed an offense not
within magistrate court trial jurisdiction, it shall bind the defendant over for trial.”); Vallejos,
93 N.M. at 389, 600 P.2d at 841 (holding that a magistrate’s determination of probable cause at
a preliminary examination requires an “exercise of judgment”). The State attempts to overcome
this reasoning by arguing that the second complaint filed in the district court constituted a
different case, and it was therefore entitled to file its peremptory excusal against Judge Atcitty.

{15} We must address the issue of form over substance and determine whether two separate
criminal cases, charging identical offenses against the same defendant, will be considered the
same case for peremptory challenge purposes. When considering the effects of dismissal and
refiling of criminal charges, our courts look past the form to the substance to determine if the
second filing constitutes a new case. See State v. Talamante, 2003-NMCA-135, ¶¶ 8-10, 134
N.M. 539, 80 P.3d 476 (holding that two indictments charging identical offenses were the same
case for speedy trial purposes); State v. Lucero, 108 N.M. 548, 550, 775 P.2d 750, 752 (Ct. App.
1989) (“[W]here the subsequent complaint contains no new charges or is not based on new facts
or information regarding the prior charges, the original complaint is not superseded.”); State ex
rel. Delgado v. Stanley, 83 N.M. 626, 627, 495 P.2d 1073, 1074 (1972) (holding that the state
must demonstrate a bona fide reason for refiling charges after dismissing those charges by filing
a nolle prosequi if the defendant asserts that it was done to circumvent the six-month rule). In
this case, the charges filed in district court were identical to the charges dismissed after Judge
Atcitty made a finding of no probable cause in the magistrate court. We therefore conclude that
the two complaints are the same case, and the State could not disqualify Judge Atcitty after it
asked him to exercise his discretion in the first proceeding.

{16} The result of the procedure employed by the State was to allow one magistrate to
overrule another magistrate on the issue of probable cause after a review of the same evidence.

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This is not proper. See Jones v. State, 481 P.2d 169, 171 (Okla. Crim. App. 1971) (“When an
examining magistrate rules that the evidence offered by the state is insufficient to hold the
accused over for trial on the charge, such a ruling is binding and final on him and any other
examining magistrate unless the state produces additional evidence or proves the existence of
other good cause to justify a subsequent preliminary examination.”); see generally State v.
Atencio, 2004 UT App 93, 89 P.3d 191 (suggesting a difference between cases that are unable
to proceed and cases where evidence is insufficient to proceed). Our constitution expresses a
preference against co-equal judges reviewing decisions of each other. N.M. Const. art. VI, § 13
(“The district courts, or any judge thereof, shall have power to issue writs . . . provided, that no
such writs shall issue directed to judges or courts of equal or superior jurisdiction.”); Sims v.
Ryan, 1998-NMSC-019, ¶ 6, 125 N.M. 357, 961 P.2d 782 (stating that a presiding judge “may
not infringe on [another] judge’s inherent power”). It is axiomatic that a party may not do
indirectly that which the law does not permit directly. Cf. Shortle v. McCloskey, 38 N.M. 548,
550, 37 P.2d 800, 801 (1934) (holding that permitting appellants to appeal the lower court’s
refusal to vacate the order as opposed to appealing the order itself “would be doing by
indirection what cannot be done directly” (internal quotation marks omitted)); see State v.
Darby, 663 S.E.2d 160, 164 (Ga. 2008) (“It is a general rule that one cannot do indirectly that
which the law does not allow to be done directly.”) (internal quotation marks and citation
omitted); Carmell v. Texas, 529 U.S. 513, 541 (2000) (“[F]or what cannot be done directly
cannot be done indirectly.” (quoting Cummings v. Missouri, 71 U.S. 277, 325 (1866)).

{17} While prosecutors have wide latitude in how they seek to prosecute cases, when there
is a “bad reason” for their actions, the courts have an obligation to intervene. State v. Ahasteen,
1998-NMCA-158, ¶ 22, 126 N.M. 238, 968 P.2d 328 (“Prosecutors may ordinarily do what they
wish[,] unless there is a bad reason for what they do, in which event the court will supervise it
in a way that might prevent the prosecution.” (internal quotation marks and citation omitted)).
Interpreting the rules applicable to this case “with logic and common sense to avoid absurd
results,” State v. Ware, 115 N.M. 339, 342, 850 P.2d 1042, 1045 (Ct. App. 1993), we conclude
that it was error for the district court to order a magistrate to conduct a second probable cause
determination, a point which the district court acknowledged as a “huge mistake,” yet failed to
correct at a subsequent hearing on a motion to dismiss. Further, it was error to allow the State
to peremptorily excuse Judge Atcitty from conducting the preliminary hearing after remand from
the district court in the new proceeding.

{18} In accordance with our discussion, we hold that the probable cause determination
conducted by Judge Biel was improper. As a result, Defendant could not enter a plea,
conditional or otherwise, based on an information not supported by probable cause. See Rule
5-302(C) (“If . . . there is no probable cause . . ., the court shall discharge the defendant.”).
Defendant’s convictions must be set aside.

III. CONCLUSION

{19} This matter is remanded to the district court for further proceedings in accordance with
this Opinion.

{20} IT IS SO ORDERED.

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 _______________________________________
ROBERT E. ROBLES, Judge

WE CONCUR:

_______________________________________
RODERICK T. KENNEDY, Judge

_______________________________________
TIMOTHY L. GARCIA, Judge

Topic Index for State v. White, No. 28,588

AE APPEAL AND ERROR
AE-SR Standard of Review

CA CRIMINAL PROCEDURE
CA-CA Collateral Attack or Estoppel
CA-PH Preliminary Hearing
CA-PA Probable Cause
CA-RD Right to Speedy Trial

CT CONSTITUTIONAL LAW
CT-NM New Mexico Constitution, General

JD JURISDICTION
JD-MC Magistrate Court

JG JUDGES
JG-AD Abuse of Discretion
JG-EX Excusal or Recusal
JG-SJ Successor Judges

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