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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2020-NMCA-024
Filing Date: November 25, 2019
No. A-1-CA-36295
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
YSIDRO ROBERT GARCIA,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Cindy Leos, District Judge
Certiorari Denied, April 10, 2020, No. S-1-SC-38136. Released for Publication June 20,
2020.
Hector H. Balderas, Attorney General
Santa Fe, NM
John Kloss, Assistant Attorney General
Albuquerque, NM
for Appellant
Bennett J. Baur, Chief Public Defender
C. David Henderson, Appellate Defender
Santa Fe, NM
for Appellee
OPINION
HANISEE, Chief Judge.
{1} The State appeals from the district court’s order granting Defendant Ysidro
Garcia’s motion to reconsider a prior district court judge’s denial of Defendant’s motions
for mistrial. The State contends the district court erred in ordering a new trial because
(1) Defendant did not file his motion to reconsider within the post-verdict time limit set
forth by Rule 5-614(C) NMRA; (2) the district court misapprehended what occurred at
trial; and (3) the State’s witness referred to Defendant’s invocation of his Fifth
Amendment right to counsel on only one occasion, immediately after which the district
court gave a curative instruction. Concluding Defendant’s motion to reconsider was
untimely, we reverse and remand for sentencing.
I. BACKGROUND
{2} Defendant was arrested on charges1 of receiving or transferring a stolen vehicle,
in violation of NMSA 1978, Section 30-16D-4 (2009), and went to trial before a jury in
September 2016. Before separately discussing the relevant post-trial proceedings, we
first briefly review the portion of the trial proceedings on which Defendant’s motions
were premised.
A. Trial
{3} At trial, the State elicited testimony from Albuquerque Police Department
Detective Joel Block about his interactions with Defendant at the police station following
his arrest. When asked by the prosecutor what Defendant told him in the interview room
at the police station, Detective Block said, “I did read him the advice of rights. He said
he did understand. He did sign the form and he wished to speak to his attorney.”
Defense counsel promptly objected, asked to approach the bench, and moved for a
mistrial. Then, presiding Judge David N. Williams asked the prosecutor, “Why did you
elicit that?” The prosecutor responded, “Just to see if there w[ere] any admissions from
[D]efendant.” Defense counsel argued that “there’s been a comment on the fact that
[Defendant] invoked his [Fif]th Amendment . . . right to be silent[,]” and made the first
motion for a mistrial. Judge Williams denied Defendant’s motion and stated that, in
order to cure any prejudice arising from Detective Block’s testimony, the court would
instruct the jury that it was not to infer Defendant’s guilt from his stated wish to speak
with an attorney. Judge Williams then asked the prosecutor whether he knew Detective
Block “was going to say [Defendant] asked for an attorney[,]” which the prosecutor
denied. Judge Williams found there to be no “deliberate misconduct” by the State, and
then provided the following curative instruction:
Ladies and gentlemen, in this country, somebody that[ has been] arrested
has an absolute right not to say anything to the police officers and has an
absolute right to ask for an attorney if he or she wants one. You are not
permitted, may not draw any inference at all about the testimony you
heard that [Defendant] asked for an attorney.
{4} After giving the instruction, Judge Williams asked if each juror understood the
instruction and whether the jury could assure the court that it would refrain from using
that statement “in any way” when evaluating the evidence. The jurors responded
1Defendant was also charged with possession of burglary tools under NMSA 1978, Section 30-16-5 (1963), driving
while license is suspended or revoked under NMSA 1978, Section 66-5-39 (2013, amended 2019), and possession
of drug paraphernalia under NMSA 1978, Section 30-31-25 (1980), but these charges were dismissed on directed
verdict.
affirmatively, and during the remainder of the trial, neither party referred to Detective
Block’s testimony that Defendant asked for a lawyer while he was in custody.
{5} After the jury returned a guilty verdict and the district court dismissed the jurors,
Defendant renewed his earlier motion for a mistrial. The district court denied the
renewed motion.
B. Post-Trial Proceedings
{6} On January 11, 2017, the district court entered a notice setting Defendant’s
sentencing hearing. The following day, the case was reassigned from Judge Williams to
Judge Cindy Leos. On January 23, 2017, more than four months after the trial ended,
Defendant filed an opposed motion to reconsider the district court’s previous denials of
Defendant’s initial and renewed motions for a mistrial, contending again that the State’s
elicitation of Detective Block’s testimony constituted “an impermissible comment on
Defendant’s silence.” The State opposed the motion. At the outset of a hearing on
Defendant’s motion in March 2017 Judge Leos stated that, based on her review of the
trial transcript, the question before the court was whether a new trial was necessary due
to Detective Block’s testimony regarding Defendant’s wish to speak with an attorney.
Judge Leos opined that the trial “was fundamentally flawed,” and that “[Defendant’s]
constitutional right to remain silent and for the jury to not necessarily have any
knowledge of that . . . was impacted[,]” and concluded that a new trial was required.
{7} During argument on Defendant’s motion, the State contended that (1) the district
court’s curative instruction was sufficient to prevent any prejudice to Defendant, and (2)
Defendant’s motion to reconsider was untimely, arguing that the timing of Defendant’s
motion suggested “improper forum shopping or [an] attempt to circumvent the decision
of Judge Williams[,]” and that the proper course of action would be for Defendant to file
an appeal with this Court. In response, Defendant argued that because judgment had
not yet been entered in the case, the district court could reconsider any previous rulings
in the case. Defendant also reiterated his underlying contention that, based on
Detective Block’s testimony regarding Defendant’s request for an attorney, the “jury was
tainted and any decision [reached thereafter] is questionable.”
{8} Following argument, Judge Leos repeated her conclusion that the trial was
“fundamentally flawed,” adding that, in her view, the curative instruction “made things
worse for [Defendant], not better.” Finding that “the trial was flawed, [and that
Defendant’s] right to a fair trial was impacted by [Detective Block’s] testimony[,]” Judge
Leos granted Defendant’s motion to reconsider and ordered a new trial. The State now
appeals.
II. DISCUSSION
{9} The State argues the district court erred in ordering a new trial for three reasons:
(1) the time limits under Rule 5-614(C) precluded a new trial in Defendant’s case; (2)
Judge Leos misapprehended what took place at the trial presided over by Judge
Williams; and (3) the misapprehensions led Judge Leos to erroneously find prejudicial
error had occurred at trial. After review of the record, we conclude that Defendant’s
motion to reconsider was untimely, and we therefore need not address the State’s
additional arguments.
The District Court Erred in Granting a New Trial Because Defendant’s Motion Was
Untimely
{10} This case requires us to (1) examine whether Rule 5-614 applies to a motion that
seeks a new trial but is styled as a motion to reconsider; and (2) if so, whether
Defendant’s motion was time-barred Rule 5-614(C).
{11} “We review de novo questions of law concerning the interpretation of Supreme
Court rules and the district court’s application of the law to the facts.” State v. Foster,
2003-NMCA-099, ¶ 6,
134 N.M. 224,
75 P.3d 824. We begin by observing while a
motion for reconsideration would not typically be controlled by Rule 5-614, our appellate
courts have held that when a motion’s substance and effect is that of a different motion
than that which was filed, we treat the motion substantively and procedurally based on
the relief it seeks, an analysis that includes requirements for timeliness. In State v.
Baca, our Supreme Court rejected an attempt to characterize the defendant’s “motion
for a premature termination of the trial for procedural reasons” as a request for an
acquittal, concluding that “substance rather than labels” controls and that to conclude
otherwise would mean a party “could simply misuse merits terminology to mask the true
nature” of the relief sought.
2015-NMSC-021, ¶ 42,
352 P.3d 1151. Similarly, in Chapel
v. Nevitt, this Court relied on “the language of the order and the relief that it sought” to
determine whether an inaptly titled “motion to modify” should be considered under Rule
1-059(E) NMRA (governing motions to alter, amend, or reconsider final judgment) or as
a motion to reconsider filed under to NMSA 1978, Section 39-1-1 (1917). 2009-NMCA-
017, ¶ 18,
145 N.M. 674,
203 P.3d 889. Given our similar past resolution of misnamed
motions seeking relief of a nature identified within and governed by a particular rule, we
can conclude that when a motion’s substance and effect is that of a motion for a new
trial and a new trial is unambiguously the relief sought, Rule 5-614, along with the
timeliness requirements set forth in Subsection (C) thereof, apply regardless of the
motion’s title.
{12} We now apply Rule 5-614 to Defendant’s motion. Rule 5-614(C) requires that “[a]
motion for a new trial based on [any grounds other than newly discovered evidence]
shall be made within ten (10) days after verdict or finding of guilty or within such further
time as the court may fix during the ten (10) day period.” Where, as here, “our state
court rules closely track the language of their federal counterparts, we have determined
that federal construction of the federal rules is persuasive authority for the construction
of New Mexico rules.” Albuquerque Redi-Mix, Inc. v. Scottsdale Ins. Co., 2007-NMSC-
051, ¶ 9, 142 N.M. 527,
168 P.3d 99. Rule 5-614 was based on Rule 33 of the Federal
Rule of Criminal Procedure and closely tracks the language of its federal counterpart.
See State v. Lucero,
2001-NMSC-024, ¶ 8,
130 N.M. 676,
30 P.3d 365 (“In
promulgating Rule 5-614, we derived the time requirement in [S]ubsection [(C)] of the
rule from Rule 33 of the Federal Rules of Criminal Procedure.”). “The time requirement
for the filing of a motion for new trial in Rule 5-614(C) is nearly identical to the
requirement in Rule 33 except that, compared to our ten-day filing requirement, the
federal rule provides only seven days to file the motion after verdict or finding of guilty. ”
Lucero,
2001-NMSC-024, ¶ 8 (internal quotation marks omitted). Turning then to federal
precedent, we agree with the Tenth Circuit’s holding that a defendant’s motion for
reconsideration, filed twenty-one months after denial, was not timely because under
Federal Rule of Criminal Procedure 33, “a motion to reconsider the denial of a . . . new
trial . . . is timely if filed within ten days of the entry of judgment” or order. United States
v. Miller,
869 F.2d 1418, 1420-21 (10th Cir. 1989).
{13} In this case, after Judge Williams’ post-verdict denial of Defendant’s renewed
motion for mistrial, Defendant filed his motion for reconsideration more than four months
after the jury trial and, notably, only eleven days after the district court filed a notice
reassigning the case to Judge Leos. Defendant’s motion for reconsideration argued in
part that the district court has inherent power to reconsider the denial of Defendant’s
initial and renewed motions for mistrial as a modification of an interlocutory order prior
to final judgment. But the goal of the motion was crystal clear: it claimed “that the only
remedy under the circumstances is a mistrial[,]” a ruling from which a new trial
inherently flows. Although district courts are free to modify their interlocutory orders at
any time before final judgment, State v. Suskiewich, 2014-NMSC-040, ¶ 11,
339 P.3d
614; Sims v. Sims,
1996-NMSC-078, ¶ 59,
122 N.M. 618,
930 P.2d 153, they may not
do so contrary to the time limits in Rule 5-614(C), which restricts the authority of district
courts for good reasons. Among those is finality. 2 As the Eleventh Circuit has
recognized, “To permit the unlimited renewal or reconsideration of fully decided motions
[for new trial] would needlessly tie up judicial resources and seriously delay the final
disposition of cases. Doing so would undermine both the language and purpose of the
[r]ules.” United States v. Gupta,
363 F.3d 1169, 1174 (11th Cir. 2004). In addition, the
United States Supreme Court has long emphasized the significance of the principle of
recency, explaining that “as time passes, the peculiar ability which the trial judge has to
pass on the fairness of the trial is dissipated,” and “[i]t is in the interest of justice that a
decision on the propriety of a trial be reached as soon after it has ended as is
possible[.]” United States v. Smith,
331 U.S. 469, 475-76 (1947).
{14} Here, during the ten days in which Defendant could have renewed his motion or
moved to extend the ten-day time period under Rule 5-614(C), Defendant did not do so.
As a consequence, any subsequent motion seeking a new trial on the basis of Detective
Block’s testimony was untimely and therefore barred. See United States v. Bramlett,
116 F.3d 1403, 1405-06 (11th Cir. 1997) (explaining that a renewed motion for a new
trial, when made outside of the post-verdict seven-day period and beyond any extension
granted within that seven-day period, is barred under Rule 33); United States v.
2Although an oral ruling is generally not considered to be a final judgment, State v. Vaughn,
2005-NMCA-076, ¶
24,
137 N.M. 674,
114 P.3d 354, oral rulings on motions for mistrial present an exception to the general rule and
are considered final. See State v. Reyes-Arreola,
1999-NMCA-086, ¶ 10,
127 N.M. 528,
984 P.2d 775 (concluding
that oral declarations of mistrial are binding and are not subject to change unlike other oral decisions by the
district court).
Matthews,
256 F. Supp. 2d 202, 204 (S.D.N.Y. 2003) (denying appellant’s motion for
reconsideration because it was filed outside of the post-verdict seven-day time period
under Rule 33 and was therefore untimely).
{15} Judge Leos’ subsequent order granting Defendant’s motion for reconsideration
and request for mistrial was an erroneous order granting an untimely motion for a new
trial, not a modification of an interlocutory order. We reiterate that when the substance
of such a motion is that of a motion for a new trial, and a new trial is unambiguously the
relief sought, the motion must be reviewed as a motion for a new trial—regardless of
whether a party uses some other nomenclature—and must be filed in conformity with
the timeliness requirements of Rule 5-614(C).
III. CONCLUSION
{16} For the aforementioned reasons, we reverse the district court’s order granting
Defendant a new trial and remand for resentencing. Our opinion does not foreclose
Defendant from appealing the denial of his motion for new trial after the district court
enters a final judgment.
{17} IT IS SO ORDERED.
J. MILES HANISEE, Chief Judge
WE CONCUR:
M. MONICA ZAMORA, Judge
ZACHARY A. IVES, Judge
