Office of the
Director New Mexico
Compilation
2023.10.11 Commission
'00'06- 13:01:19
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: 2023-NMSC-019
Filing Date: May 22, 2023
No. S-1-SC-39744
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
JOE ANDERSON,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Emeterio L. Rudolfo, District Judge
Raúl Torrez, Attorney General
Charles J. Gutierrez, Assistant Attorney General
Santa Fe, NM
for Appellant
Bennett J. Baur, Chief Public Defender
Kimberly M. Chavez Cook, Appellate Defender
Santa Fe, NM
Fenderson Firm
Keren H. Fenderson
Albuquerque, NM
for Appellee
OPINION
ZAMORA, Justice.
{1} In this opinion concerning pretrial detention, we explain our reasons for issuing
an order reversing the district court’s denial of the State’s motion for pretrial detention of
Defendant Joe Anderson, charged with first-degree murder pursuant to NMSA 1978,
Section 30-2-1(A)(1) (1994). Under this Court’s interpretation of Article II, Section 13 of
the New Mexico Constitution, a defendant charged with a felony can be detained
without bail prior to trial if the State demonstrates by clear and convincing evidence that
(1) the defendant is dangerous and (2) no release conditions will reasonably protect the
safety of any individual or the community. See State v. Mascareno-Haidle, 2022-NMSC-
015, ¶ 27, 514 P.3d 454; Rule 5-409(F)(4) NMRA. In this case, Defendant’s
dangerousness is not disputed. At issue is the second prong of the pretrial detention
inquiry: whether the State met its burden to prove by clear and convincing evidence that
no release conditions could reasonably protect any individual or the community.
{2} The State presented reliable evidence that Defendant had an extensive criminal
history that included crimes of violence, failures to appear, violations of probation, new
charges while on probation, committing felonies while incarcerated, knowingly
possessing a firearm while a felon, and noncompliance with pretrial services
requirements. This evidence amply satisfied the State’s burden to prove that no release
conditions would reasonably protect the community. We hold that the district court
abused its discretion when it denied the State’s motion without properly weighing the
required factors under Rule 5-409(F)(6).
I. BACKGROUND
A. State’s Evidence in Support of Pretrial Detention
{3} In support of its motion for pretrial detention, the State tendered documentary
exhibits, which included a list of Defendant’s criminal cases printed from New Mexico
court records, a public safety assessment (PSA) of Defendant completed by the Second
Judicial District Court’s pretrial services division, numerous case details of court actions
in Defendant’s previous criminal cases, and criminal complaints filed in two cases.
Defendant did not object to these exhibits. During the hearing, the State also made
several proffers, as is permitted in a pretrial detention hearing. See State ex rel. Torrez
v. Whitaker, 2018-NMSC-005, ¶ 110,
410 P.3d 201.
1. Evidence supporting the current first-degree murder charge
{4} Defendant is charged with first-degree murder over a simple property dispute.
According to the criminal complaint, when the victim did not return Defendant’s
motorcycle “as promised,” Defendant hunted down the victim and shot him in the street.
Defendant is alleged to have had an accomplice on this mission who took possession of
the motorcycle as the victim lay dying. Defendant is alleged to have then returned to the
crime scene and chatted with police, presenting himself as a concerned citizen and
offering the police his phone number.
{5} The evidence linking Defendant to the crime is the following. Police found the
victim’s body in the middle of the street in the early morning hours of August 6, 2022.
The victim had been shot while driving the motorcycle, one of his legs was burned by
the hot exhaust pipe, and gasoline had leaked onto the victim’s body. Police set up a
perimeter around the crime scene. A group of four people, two men and two women,
approached an officer who was guarding the perimeter and asked the officer about the
identity of the victim. One of the men—“very distinctive looking” with a shaved head and
tattoos covering his head, neck, hands, and arms—gave the officer his phone number
and told the officer to “‘get ahold of us anytime’” with more information about the victim.
One of the women in the group, as it later turned out, was the victim’s girlfriend.
{6} The victim’s girlfriend told police that she was with Defendant at the crime scene
when the group spoke with the officer and that Defendant was the man who gave the
officer his phone number. She stated that her boyfriend, the victim, had borrowed a
“‘Harley-kind’” of motorcycle from Defendant. She told police that Defendant lived in an
apartment on Vail Avenue, just one street north of the crime scene.
{7} Surveillance video from a parking lot near the crime scene showed a white Ford
Expedition SUV pulling in behind the victim as he got on a “‘Harley-style’” motorcycle.
The victim looked back at the SUV and fled on the motorcycle out of camera view while
the driver and passenger got out of the SUV and ran after the victim. The driver
“appear[ed] to be holding an object in his right hand.” Within a minute, the driver
returned to camera view, got into the SUV, and drove away. Meanwhile, the passenger
could be seen in another surveillance video attempting to start the motorcycle several
times before slowly walking the motorcycle down the street.
{8} Police observed a white Ford Expedition SUV in the parking lot of the apartment
complex on Vail Avenue where the victim’s girlfriend said that Defendant lived. The SUV
had a University of New Mexico license plate, heavy window tint, and “distinctive black
rims.” Police confirmed through Motor Vehicle Division records and other sources that
Defendant was “associated with” several vehicles including motorcycles and a white
Ford Expedition SUV.
{9} Lapel camera footage showed that the man who approached the police officer
and offered his phone number had the same build and physical characteristics as the
man seen in the surveillance video driving the SUV from the parking lot near the crime
scene. In both videos, the man was wearing identical clothing, including a baseball shirt,
long shorts, and distinctive black and white sneakers.
{10} A confidential source contacted police with information about the details of the
crime. The source stated that Defendant “lent [the victim] his motorcycle” and “[the
victim] did not return the motorcycle as promised.” The source stated that Defendant’s
girlfriend told Defendant where the victim was, whereupon Defendant and another
individual “chased after [the victim].” Defendant shot “[the victim] multiple times in the
street,” and “the motorcycle was taken away from the area.” The confidential source
also described Defendant’s vehicle as a white Ford Expedition SUV with a University of
New Mexico license plate and custom rims and tires, which aligned with the appearance
of the vehicle in the surveillance video and the vehicle that police observed in the
parking lot of the apartment complex on Vail Avenue.
{11} The manager of the apartment complex on Vail Avenue confirmed that
Defendant had recently lived in one of the apartments and that the phone number given
to the police officer at the crime scene was Defendant’s phone number. However, by
the time police spoke to the manager, Defendant and his girlfriend had moved out of the
apartment, and the manager did not know where they had gone.
2. Defendant’s criminal history
{12} Defendant’s criminal history reflects near constant involvement in the criminal
justice system over nineteen years. The State presented evidence of this criminal
history in the form of printouts of publicly available court records detailing the actions
taken in each of Defendant’s cases.
{13} Defendant’s criminal history began in 2003 when Defendant pleaded no contest
to aggravated battery on a household member, child abuse, and resisting or evading an
officer in case number D-202-CR-2003-00024. Defendant successfully completed
probation in that case in September 2006.
{14} In February 2007, Defendant was indicted on four felonies in case number D-
202-CR-2007-00643: receiving or transferring a stolen motor vehicle; possessing a
controlled substance; conspiring to commit receiving or transferring a stolen motor
vehicle; and tampering with evidence. Defendant failed to appear twice in that case, first
to a pretrial proceeding and then to the trial itself. After Defendant failed to appear at the
trial, a bench warrant was issued and was outstanding for nearly one month before
Defendant turned himself in. Despite Defendant’s failures to appear, the district court
accepted a plea to a conditional discharge on March 10, 2009, and ordered Defendant
to complete twelve months of supervised probation. Just three months later, the State
filed a motion to revoke probation. A bench warrant was issued and was outstanding for
twenty days before Defendant was arrested. At a probation violation hearing on July 1,
2009, Defendant admitted to violating probation. The district court found a probation
violation and then reinstated his probation.
{15} While Defendant was on probation in case number D-202-CR-2007-00643, he
was charged on June 18, 2009, with armed robbery in a different county, in case
number D-1329-CR-2009-00289. Despite his pending armed robbery charge, the district
court in case number D-202-CR-2007-00643 granted Defendant’s conditional discharge
on March 26, 2010. The State voluntarily dismissed the armed robbery charge
approximately three months later on June 18, 2010.
{16} Five months later, Defendant shot and killed a man. See State v. Anderson, A-1-
CA-35876, mem. op. ¶¶ 2, 8 (N.M. Ct. App. June 17, 2019) (nonprecedential). For that
incident, Defendant was indicted for first-degree murder, voluntary manslaughter,
kidnapping, tampering with evidence, conspiracy to tamper with evidence, aggravated
battery with a deadly weapon, and false imprisonment in case number D-202-CR-2010-
05929. The district court placed Defendant on a no bond hold, denying him the
possibility of release on bail. Less than a year later, Defendant filed a motion to review
conditions of release, after which the district court set Defendant’s bail at $1,000,000
cash or surety. Defendant did not make bail. At trial, the jury convicted Defendant of
second-degree murder, and Defendant was sentenced to sixteen years in prison.
{17} On appeal, Defendant was granted a new trial. See State v. Anderson, 2016-
NMCA-007, ¶ 1, 364 P.3d 306. During the pendency of that appeal, Defendant pleaded
guilty to two new felonies that he committed while in prison: conspiracy to commit
narcotics trafficking and conspiracy to commit distribution of a nonnarcotic controlled
substance, in case number D-506-CR-2014-00375.
{18} At Defendant’s new trial on the murder charge, a new jury convicted Defendant
of voluntary manslaughter and a firearm enhancement. The district court sentenced
Defendant to seven years in prison. Defendant was released in 2019.
3. Concurrent felony charges
{19} At the time of the pretrial detention hearing in this case, Defendant also stood
charged with four additional felonies in a separate case, D-202-CR-2022-01951. That
case arose from Defendant’s arrest on August 18, 2022, twelve days after the homicide
at issue in this case, for an incident that occurred in the parking lot of the Vail Avenue
apartments where Defendant lived. In that incident, police observed Defendant in a
stolen, gold Chevy Tahoe. When police approached Defendant, he admitted that he had
a gun. He further admitted that he knew he was a felon and was not permitted to have a
gun but explained that he needed the gun for protection. Upon his arrest, Defendant
was found in possession of fentanyl pills and methamphetamine.
{20} In that case, Defendant’s four charged felonies were possession of a firearm by a
felon, receiving or transferring a stolen motor vehicle, and two counts of possession of a
controlled substance. The State filed a motion for pretrial detention in that case on
August 22, 2022, approximately four months before the murder charge was brought in
the instant case. On August 29, 2022, the district court denied the motion and, on
September 6, 2022, set release conditions that included requirements for Defendant to
be supervised by pretrial services and to submit to random urinalysis upon the request
of pretrial services.
4. Noncompliance with pretrial services supervision
{21} At the January 10, 2023, detention hearing in this case, the district court inquired
about Defendant’s compliance with pretrial services supervision in the concurrent,
pending case, D-202-CR-2022-01951. The pretrial services officer responsible for
supervising Defendant in that case informed the court that Defendant forgot to check in
with the officer every week and that the officer had to call to remind Defendant of his
responsibilities. Despite these reminders, the officer recounted that Defendant failed to
report to pretrial services for two weeks in a row. As a consequence of Defendant’s
failure to report, the officer had requested a bench warrant for noncompliance with
pretrial services. That warrant was canceled as a result of Defendant’s arrest on the
first-degree murder charge in this case.
{22} Additionally, the pretrial services officer in the concurrent, pending case informed
the court that, for approximately the last three months, Defendant had not called pretrial
services for random urinalysis as required.
5. Other evidence
{23} The State offered additional reasons that no conditions of release could
reasonably protect public safety. The State entered into evidence the results of a public
safety assessment that flagged Defendant as a person who is at risk of committing new
violent crimes if released pretrial. The PSA scored Defendant five-out-of-six for risk of
new criminal activity and recommended that if Defendant were to be released, he be
released at the highest level of supervision. 1
{24} The prosecutor proffered that Defendant’s girlfriend—with whom Defendant had
lived and who is a witness in this case—owned a firearm and that “pretrial services does
not perform home visits” and could not ensure that Defendant would not have access to
that firearm. The prosecutor also proffered that Defendant did not have a current known
residence.
B. Defendant’s Evidence in Favor of Release
{25} Defendant called an alibi witness, James Murray, who testified that he was with
Defendant and Defendant’s girlfriend at their apartment complex on the night of the
shooting. He testified that they heard gunshots in the neighborhood and remained in
their apartment complex until Defendant went to the store twenty-five or thirty minutes
later, “to get some milk for the formula for the baby.”
{26} On cross-examination, Mr. Murray admitted that he was part of the group of four
people who approached the crime scene and spoke to the officer. He identified the
members of the group as “me, [Defendant] and his wife, and the pregnant girl.” The
prosecutor did not inquire into whether Mr. Murray knew “the pregnant girl,” who
presumably was the victim’s girlfriend as stated in the criminal complaint. The
prosecutor also did not inquire into the circumstances behind this group’s decision to
gather and go to the crime scene; nor did she ask about the timeline of Defendant’s
alleged trip to the store for milk in relation to the group’s trip to the crime scene. Instead,
the prosecutor focused her cross-examination on whether Mr. Murray provided false
contact information to the officer at the scene, which he denied.
{27} The defense then played the surveillance video. The district court asked whether
the lapel camera video was also available; the prosecutor stated that it was available,
but “it isn’t my turn yet.” The district court did not request that the prosecutor play the
video but instead invited the defense to make its argument. The lapel camera video was
not played at any time during the hearing.
C. The District Court’s Ruling
{28} Before announcing its ruling, the district court inquired about the timeline of the
prosecution. The prosecutor informed the court that although the homicide occurred in
August, the confidential source did not come forward until October. The court noted that
1The PSA is only a tool to assess the level of supervision if there is a release. It is not a guide or mandate
for a judge to in fact release a defendant.
the complaint was not filed until December. The district court then shared its thoughts
about the evidence:
The troubling things I guess are—and it’s kind of hard not to want to
consider, and we should consider, the past history and that conviction—
the jury found him guilty of, what was it, voluntary manslaughter? And in
this instance, I think when you read the complaint, and you see ‘distinct
shoes’ and ‘distinct tattoos’ that were corroborated by the video, it just
seems like a big stretch in saying that the video shows any of that. The
socks and shorts, and not my style personally, but we saw that the guy on
the motorcycle is wearing long shorts and long socks. That in certain
neighborhoods and in certain groups is not uncommon to see. It is not a
distinct look. It’s a pretty common look, to be wearing the long shorts,
especially in August.
And then, we don’t know what happened off video. We don’t know if the
shooter, if the evidence, I mean if it turns out that [Defendant] was in fact
the person in that vehicle, chasing after someone for a stolen motorcycle,
what happens off camera? Does the other person who’s fleeing with the
stolen motorcycle pull out a firearm, pull out a weapon? And is there
anything else in, um. I mean, I guess my point is that the evidence on first
glance in reading the complaint seems really, really strong for the State.
And then after seeing that videoclip—more so the videoclip than Mr.
Murray’s testimony—it isn’t as clear as I felt that it would be based on the
complaint. But that’s one factor, I guess, is the weight of the evidence.
The other thing that I feel is the State, or the police, the government,
viewed him as such a threat, having this information since October and
then not acting until December, I don’t know. To me that, and nothing, and
thank goodness that there’s no other offenses or anything. But nothing
having occurred or no other violations of the orders on the other case kind
of, and in light of the pretrial services [PSA], kind of makes me lean
towards releasing [Defendant].
{29} The district court found that the State’s evidence was reliable and that Defendant
would likely pose a threat to the safety of others if released pending trial. However, the
district court stated that “the big question” was whether any conditions of release could
reasonably protect the public. The district court stated that while it had concerns about
Defendant’s “criminal history and the fact that a gun is alleged to have been used in this
case,” it “didn’t see anything [indicating] that a gun was found or [Defendant] had a gun
in his possession or warrants were executed and firearms were found.”
{30} In response, the State clarified that while no firearms were found on the victim,
warrants had been executed and a firearm belonging to Defendant’s girlfriend had been
found. The State also noted that Defendant had been found in possession of a firearm
and that Defendant admitted to having a firearm in his concurrent, pending case, D-202-
CR-2022-01951, the events of which took place after the alleged murder in this case.
{31} Without providing any further rationale, the district court denied the State’s
motion for pretrial detention and placed Defendant on the same conditions of release
that had been imposed in his concurrent case, with the addition of a GPS ankle monitor.
{32} In its written order, the district court repeated its initial findings that the State’s
evidence was reliable and that Defendant was dangerous. However, it found “that any
danger [Defendant] may pose on the community can be mitigated because of
[Defendant’s] performance on probation in the past as well as his performance on
pretrial services in the pending cause number D-202-CR-2022-01951 where there have
been no allegations of violations of conditions of release.” Specifically, the district court
found that “[t]he history and characteristics of [Defendant] indicate that there are
conditions of release that can mitigate the danger he may pose to the community”
because he “successfully [completed] probation in both causes D-202-CR-2003-00024
and D-202-CR-2007-00643.” “Furthermore,” the court found, “[Defendant] is currently on
pretrial services in cause number D-202-CR-2022-01951 where there have been no
allegations of violations of conditions of release.”
D. The State’s Appeal
{33} The State appealed to this Court pursuant to Rule 12-204 NMRA, arguing that
the district court abused its discretion when it held that the State failed to prove that no
conditions of release could reasonably protect the safety of any individual or the
community. We ordered a response from Defendant. After considering the written
submissions, we issued an order reversing the district court and remanding Defendant
into custody. We now write to explain our reasoning for reversing the district court and
ordering Defendant’s pretrial detention.
II. DISCUSSION
A. Standard of Review
{34} This Court may reverse a district court’s ruling on pretrial detention if the ruling “is
arbitrary, capricious, or reflects an abuse of discretion; . . . is not supported by
substantial evidence; or . . . is otherwise not in accordance with law.” Rule 12-
204(D)(2)(b). “[A] decision is arbitrary and capricious if it is unreasonable or without a
rational basis, when viewed in light of the whole record.” State v. Groves, 2018-NMSC-
006, ¶ 25, 410 P.3d 193 (internal quotation marks and citation omitted). “An abuse of
discretion occurs when the court exceeds the bounds of reason, all the circumstances
before it being considered.” State v. Brown,
2014-NMSC-038, ¶ 43,
338 P.3d 1276
(internal quotation marks and citation omitted). “Substantial evidence is such relevant
evidence that a reasonable mind would find adequate to support a conclusion.” Groves,
2018-NMSC-006, ¶ 25 (internal quotation marks and citation omitted).
B. Rule 5-409 Provides the Mandatory Analytical Framework for Preventive
Detention Determinations
{35} Rule 5-409(F)(6) states plainly that the district court “shall consider any fact
relevant to the nature and seriousness of the danger to any person or the community
that would be posed by the defendant’s release and any fact relevant to the issue of
whether any conditions of release will reasonably protect the safety of any person or the
community.” (Emphasis added.) Rule 5-409(F)(6) then sets forth a nonexhaustive list of
factors that the district court must consider, at a minimum, in making its determination:
(a) the nature and circumstances of the offense charged, including
whether the offense is a crime of violence;
(b) the weight of the evidence against the defendant;
(c) the history and characteristics of the defendant;
(d) the nature and seriousness of the danger to any person or the
community that would be posed by the defendant’s release;
(e) any facts tending to indicate that the defendant may or may not commit
new crimes if released;
(f) whether the defendant has been ordered detained under Article II,
Section 13 of the New Mexico Constitution based on a finding of
dangerousness in another pending case or was ordered detained based
on a finding of dangerousness in any prior case; and
(g) any available results of a pretrial risk assessment instrument approved
by the Supreme Court for use in the jurisdiction, provided that the court
shall not defer to the recommendation in the instrument but shall make an
independent determination of dangerousness and community safety
based on all information available at the hearing.
Id.
{36} As we have repeatedly emphasized, no single factor is dispositive; instead, the
district court must consider the totality of the circumstances in reaching a decision on
pretrial detention. See, e.g., Mascareno-Haidle, 2022-NMSC-015, ¶ 36 (“[C]ontrolling
precedent from this Court . . . makes clear that pretrial detention or release decisions
cannot be made to turn on any single factor, be it the nature and circumstances of the
charged offense(s) or otherwise.”); see also Groves,
2018-NMSC-006, ¶ 34 (examining
“the totality of Defendant’s conduct”). “A detention-hearing court must take into account
both the personal rights of the accused and the broader public interest as it makes a
pretrial detention decision.” Torrez,
2018-NMSC-005, ¶ 96. Because this delicate
balancing necessarily requires an individualized risk assessment, the district court must
take care to explain its reasoning, in writing, as to how each factor applies to the
specific facts of the case. See State v. Ferry,
2018-NMSC-004, ¶ 7,
409 P.3d 918
(“[D]istrict court judges are required to file written findings of the individualized facts
justifying the detention of the defendant or the denial of the detention motion.”).
{37} In this case, the district court applied the wrong test: it did not apply the Rule 5-
409 factors but instead analyzed the case through the lens of Groves, which described
three general “categories of determinations” that the district court must make at a
detention hearing. Groves, 2018-NMSC-006, ¶ 29 (affirming categories set forth in
Torrez,
2018-NMSC-005, ¶¶ 99-102). Those general categories can be summarized as
evidentiary reliability, the defendant’s dangerousness, and whether release conditions
can reasonably protect the community.
Id. While it remains true that district courts rule
on those issues at every detention hearing, Groves described the state of the law prior
to the enactment of Rule 5-409. See Groves,
2018-NMSC-006, ¶ 27 (“The proceedings
below occurred . . . before promulgation of our procedural rules governing application of
the broad constitutional language, in particular new Rule 5-409 NMRA, governing
detention proceedings in district court.”); see also id. ¶¶ 30, 32, 35, 40 (applying Rule 5-
401 NMRA rather than Rule 5-409 to the facts of that case). In the pretrial detention
cases that were decided immediately following the 2016 constitutional amendment but
before Rule 5-409 was enacted in 2017, our courts “were necessarily working with
broad constitutional concepts and without the more detailed procedural guidance that
would be provided by our subsequent bail rule amendments.” Torrez,
2018-NMSC-005,
¶ 73. District courts must now comply with the requirements of Rule 5-409 rather than
simply applying the broad constitutional language of Groves and Torrez.
{38} Therefore, a district court must now make specific factual findings on the Rule 5-
409 factors and on any other fact that it has considered when arriving at its decision on
release or detention. Here, the district court listed generalized Rule 5-409 factors in its
written order but failed to apply them to specific, individualized facts of the case. The
district court’s failure to give these factors case-specific consideration is contrary to law
and grounds for reversal under Rule 12-204(D)(2)(b)(iii). However, we will not disturb
the decision of a district court if it was right for another reason. State v. Gallegos, 2007-
NMSC-007, ¶ 26, 141 N.M. 185,
152 P.3d 828. In this case, the district court’s ultimate
conclusion was incorrect. As we explain, a proper application of Rule 5-409 factors to
this case demonstrates that no release conditions could reasonably protect the public
from Defendant.
C. The District Court Abused Its Discretion When It Failed to Conclude That
No Release Conditions Can Reasonably Protect the Public
{39} Although Rule 12-204 sets forth a stringent standard for reversal, this case meets
that standard in all three respects. See Rule 12-204(D)(2)(b) (permitting reversal of a
district court ruling that is an abuse of discretion, unsupported by substantial evidence,
or otherwise not in accordance with law).
{40} In this case, as discussed above, the district court did not apply the correct
analytical framework of Rule 5-409 and did not make individualized findings as to each
factor in Rule 5-409(F)(6). That error rendered the ruling not in accordance with law.
Additionally, the district court’s ruling was not based on substantial evidence because,
contrary to the district court’s findings, Defendant did not in fact comply with release
supervision in the cases cited by the district court. Finally, Defendant’s extensive
criminal history, along with the pending charges and facts, establish that it was beyond
reason—and therefore an abuse of discretion—to conclude that release conditions
could reasonably protect the public from Defendant’s dangerous behavior.
1. The district court’s ruling was not based on substantial evidence
{41} The district court’s ruling was explicitly based on Defendant’s compliance with
release supervision in three other cases: D-202-CR-2003-00024, a domestic violence
and child abuse case from 2003; D-202-CR-2007-00643, a drug case from 2007; and
D-202-CR-2022-01951, the concurrent, pending, felon-in-possession case. The
evidence, however, shows that Defendant did not comply with release supervision in
each of those cases. Therefore, the district court’s ruling was not supported by
substantial evidence. While it is true that Defendant successfully completed probation in
the first case, ultimately received a conditional discharge in the second case, and was
not formally adjudicated as violating conditions of release in the third case, the district
court failed to consider evidence before it that Defendant had been noncompliant during
the pendency of his release supervision in those cases. That evidence is the following.
{42} The record in D-202-CR-2007-00643 reflects that Defendant twice failed to
appear in court, including at his own trial. After he failed to appear at trial, Defendant
remained at large with an outstanding bench warrant for several weeks. These failures
to appear and the bench warrant do not provide evidence of compliance with release
supervision.
{43} The record in that case also reflects that after pleading guilty, Defendant violated
probation. A bench warrant was issued that remained outstanding for several more
weeks. Defendant admitted to the violation, and his probation was revoked and then
reinstated. That probation violation, warrant, and probation revocation do not support a
finding of compliance with release supervision.
{44} Further, the district court heard direct testimony from the pretrial services officer
supervising Defendant’s release in the concurrent, pending case, D-202-CR-2022-
01951, that Defendant was failing to report to pretrial services and that the officer had
requested a bench warrant for that failure. The district court also heard direct testimony
from the pretrial services officer that Defendant, three months earlier, had entirely
ceased calling in to pretrial services for random urinalysis as was required under his
conditions of release. This evidence of noncompliance does not support finding
compliance with release supervision.
{45} Therefore, the district court’s ruling that Defendant was compliant in these three
cases was not based on substantial evidence. Moreover, the district court’s reliance on
Defendant’s release supervision in those three isolated cases was a thin reed on which
to rest its decision in light of the myriad other considerations called for in Rule 5-409,
which we discuss below.
2. The district court abused its discretion when it concluded that there were
release conditions that could reasonably protect the safety of the public
from Defendant
{46} In this case, ample evidence showed that Defendant was unlikely to comply with
release conditions and that the public would be put at significant risk should he fail to
comply with release conditions.
{47} The nature and circumstances of the crime were extremely violent. See Rule 5-
409(F)(6)(a). Defendant stands accused in this case of first-degree murder, assisted by
an accomplice, in response to a simple property dispute. The murder was carried out in
the middle of a neighborhood street, and the motorcycle was taken from the dying
victim. Defendant then allegedly went to the crime scene with the victim’s pregnant
girlfriend shortly after the murder in an attempt to construct an alibi.
{48} The weight of the evidence against Defendant is heavy. See Rule 5-409(F)(6)(b).
Surveillance video, information provided by the confidential source, and statements
from the victim’s girlfriend all indicate Defendant’s connection to the murder. Police
investigation corroborated important details, such as Defendant’s address, phone
number, and ownership of vehicles.
{49} Defendant’s history and characteristics strongly indicate that no release
conditions will reasonably protect the public. See Rule 5-409(F)(6)(c). His history
consists of nearly two decades of criminal behavior, including crimes of violence—
beginning with violence against household members, including children, in 2003—that
escalated to homicide by 2010. And Defendant’s history is replete with failures to
comply with official directives. As discussed herein, Defendant has a history of failures
to appear, bench warrants, and probation violations. Defendant also has a history of
overlapping cases. He picked up new felony convictions in 2008 while in prison for
homicide, and acquired a new felony charge while on probation in 2009 He also recently
admitted to being a felon in possession of a firearm in knowing violation of the law.
{50} Defendant poses a serious danger to others if released because he stands
accused of a crime that potentially carries a life sentence and because his case
depends in large part on the testimony of witnesses. See Rule 5-409(F)(6)(d).
Defendant has physically harmed others before and has even killed. As the State
pointed out in the detention hearing, the allegations in the instant case indicate
Defendant’s willingness to retaliate with violence against others over a mere property
dispute. From these facts, it is reasonable to infer that witnesses against Defendant
could also be in danger of Defendant’s retaliatory violence.
{51} Facts that indicate Defendant may commit new crimes if released include his
history of picking up new charges while on probation and in prison, his long history of
near continual contact with the criminal justice system, and the fact that the incidents
underlying his two pending cases happened only weeks apart. See Rule 5-409(F)(6)(e).
Moreover, the PSA flagged Defendant as a risk for committing new violent crimes if
released pretrial. See Rule 5-409(F)(6)(g).
{52} Finally, although Defendant has not been ordered detained in another pending
case based on a finding of dangerousness, see Rule 5-409(F)(6)(f) he was detained
pretrial without bond for nearly a year in his previous homicide case, then was held on a
$1,000,000 bond for the remainder of the pretrial period. That pretrial detention was
almost certainly intended to be preventative detention, although it took place prior to the
amendment to Article II, Section 13 that allowed for pretrial detention upon a finding of
dangerousness. 2
{53} The totality of these circumstances indicates that Defendant has an extensive
and undeniable history of violence, noncompliance, and continual law and rule breaking.
“We agree with the United States Supreme Court that under our American system of
justice ‘liberty is the norm, and detention prior to trial or without trial is the carefully
limited exception.’” Groves, 2018-NMSC-006, ¶ 44 (quoting United States v. Salerno,
481 U.S. 739, 755 (1987)). However, “in this case and on this record . . . this defendant
has earned a place in that carefully limited exception, not as punishment for [his] past
acts but to protect others from [his] predictable future dangerousness.”
Id.
D. District Courts Must Consider All of the Rule 5-409 Factors, Including a
Defendant’s Patterns of Compliance and the Possible Consequences of
Noncompliance, When Analyzing the Release-Conditions Prong of the
Pretrial Detention Inquiry
{54} The errors in this case demonstrate a need for additional guidance from this
Court on the proper application of the Rule 5-409 factors to the second prong of the
detention analysis. Our existing precedent on pretrial detention largely focuses on the
first prong, dangerousness, rather than the second, release conditions. We take this
opportunity to clarify the analysis to be used when district courts rule on this second
prong.
{55} As a threshold matter, we note that all of the Rule 5-409 factors expressly apply
to both prongs of the detention analysis. All factors are relevant to both prongs because
a defendant’s dangerousness is not an entirely separate consideration from whether
release conditions can reasonably protect the safety of the public; rather, the nature of
the defendant’s dangerousness informs whether the public can be kept reasonably safe
from that danger by the imposition of release conditions. Thus, if a district court applies
the Rule 5-409 factors and determines that a defendant is dangerous, it should not
cordon off those facts that it considered in the dangerousness analysis and limit itself
solely to the evidence that it did not yet consider in order to rule on release conditions.
2Under the pretrial release and detention framework in existence at that time, district courts routinely set
bail at an amount that the defendant likely could not pay so that the defendant would be effectively
detained pretrial. See Torrez, 2018-NMSC-005, ¶ 105 (“It is common knowledge among judges and
others who have worked in our courts that in the vast majority of cases imposition of high-dollar bonds . . .
is an effort to deny defendants the opportunity . . . [for] pretrial release.”). Thus, we note that when the
district court set Defendant’s bail at $1,000,000 in 2011, it likely did so with the intention to deny
Defendant the possibility of pretrial release.
{56} Instead, in considering the release-conditions prong of the detention analysis,
like in the initial dangerousness analysis, the district court should take a holistic,
commonsense approach. This second prong of the pretrial detention analysis, like the
first prong of dangerousness, must be proven by clear and convincing evidence. Rule 5-
409(A), (F)(4), (G), (H). However, the State must only prove that no release conditions
can reasonably protect the public, not that no release conditions can possibly protect
the public. See Groves, 2018-NMSC-006, ¶ 37 (“The determination whether available
release conditions would reasonably protect others does not require scientific accuracy
any more than any other prediction of future human behavior. The key word is
reasonably, which requires the exercise of reasoned judgment.”); see also Torrez,
2018-NMSC-005, ¶ 103 (“[T]he New Mexico Constitution, applicable court rules, and
judicial precedents here and elsewhere all refer to the need for reasonableness in
pretrial release and detention decisions.”).
{57} Certainly, the district court must consider patterns in a defendant’s past behavior.
“Both law and behavioral science recognize that in anticipating human behavior, one of
the predictive tools is the consideration of one’s character traits based on patterns of
past conduct.” Torrez, 2018-NMSC-005, ¶ 101 (text only) 3 (citation omitted). Thus, we
have recognized that if “a defendant has engaged in dangerous behavior while on
supervised release or has refused to follow court-ordered conditions of release in the
past,” Torrez,
2018-NMSC-005, ¶ 102, the district court may reasonably infer that the
defendant will be unlikely to abide by release conditions in the future. Similarly, we have
stated that a defendant’s past “pattern of refusal to comply with directions of the courts
[or] of police,” Groves,
2018-NMSC-006, ¶ 38, can indicate that the defendant likely will
not comply with release conditions. That is, if a defendant has a pattern of disregarding
official directives, it is certainly reasonable to infer that the defendant is unlikely to
comply with any conditions of release that the district court could impose in the future.
{58} But a defendant’s disregard for official directives is not the only concern in the
second prong of the detention analysis. The central concern of the second prong is
public safety: whether “release conditions will reasonably protect the safety of any other
person or the community.” Rule 5-409(F)(4). Thus, the district court must consider not
only whether a defendant is likely to comply with release conditions but also the likely
consequences to any person or the community should a defendant fail to comply.
{59} That additional inquiry is related to, and must be viewed in light of, the magnitude
of a defendant’s dangerousness. For example, a defendant with a history of violent
crimes who stands accused of a new violent crime may pose a significant and
unjustifiable risk to the safety of any person or the community if the defendant fails to
comply with release conditions. See, e.g., Torrez, 2018-NMSC-005, ¶¶ 15, 20 (noting
that the defendant was charged with shooting his girlfriend in the abdomen, and reciting
the prosecution’s proffer of the defendant’s history of prior violent crimes). In contrast, a
defendant who is accused of a string of property crimes may not pose the same level of
3The “(text only)” parenthetical indicates the omission of nonessential punctuation marks—including
internal quotation marks, ellipses, and brackets—that are present in the text of the quoted source, leaving
the quoted text otherwise unchanged.
risk to community safety in the event of noncompliance even though that defendant may
have been found to be dangerous due to the repeated pattern of criminality. See, e.g.,
Mascareno-Haidle,
2022-NMSC-015, ¶¶ 17, 33 (holding that the defendant’s alleged
pattern of burglaries, without more, did not show that no release conditions could
reasonably protect the community). And the risk to public safety posed by a particular
defendant may be somewhere in between, which is why the district court must evaluate
each case on its particular facts and consider the totality of the circumstances.
{60} To be clear, this is not to say that the district court may rely solely on the charged
offense to order a defendant’s detention. The district court cannot do so. See Brown,
2014-NMSC-038, ¶ 51. Instead, the district court must consider all facts relevant to the
detention inquiry, including each of the factors listed in Rule 5-409(F)(6), as they apply
to each prong. See Mascareno-Haidle,
2022-NMSC-015, ¶ 39 (“Rule 5-409[] . . .
require[s] a detention court to engage in a delicate case-by-case balancing of all
relevant factors.”). We emphasize that the district court must always conduct a totality of
the circumstances analysis in reaching a decision on pretrial detention, as set forth in
our case law and Rule 5-409(F)(6).
III. CONCLUSION
{61} For the foregoing reasons, we hold that the district court abused its discretion
when it denied the State’s motion for pretrial detention. Accordingly, we reverse.
{62} IT IS SO ORDERED.
BRIANA H. ZAMORA, Justice
WE CONCUR:
C. SHANNON BACON, Chief Justice
MICHAEL E. VIGIL, Justice
DAVID K. THOMSON, Justice
JULIE J. VARGAS, Justice
