State v. Benedict ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ________________
Filing Date: January 31, 2022
No. A-1-CA-38523
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
CLAYTON THOMAS BENEDICT,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Brett Loveless, District Judge
Hector H. Balderas, Attorney General
Benjamin L. Lammons, Assistant Attorney General
Santa Fe, NM
for Appellant
Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM
for Appellee
OPINION
YOHALEM, Judge.
{1} Defendant Clayton Thomas Benedict was charged by the State with second-
degree murder and the lesser included offense of voluntary manslaughter.
Defendant, an Uber driver, picked up two intoxicated passengers late afternoon on
Saint Patrick’s Day 2019. One of the passengers vomited in the backseat of
Defendant’s car. Minutes later, Defendant stopped along the shoulder of I-25 and
told the passengers to get out of the car. An argument about paying a clean-up fee
escalated into what Defendant saw as an attack sufficient to provoke him into fatally
shooting James Porter (Victim), one of his passengers.
{2} The State appeals pursuant to NMSA 1978, Section 39-3-3(B)(1) (1972), from
the district court’s decision that there was no probable cause to bind Defendant over
for trial on second-degree murder. The district court found probable cause solely on
the lesser included offense of voluntary manslaughter. We agree with the State that
the district court erred in failing to find probable cause to bind Defendant over for
trial on second-degree murder and remand for amendment of the criminal
information to include that charge.
BACKGROUND
{3} The State filed a criminal information charging Defendant with second-degree
murder, pursuant to NMSA 1978, Section 30-2-1(B) (1994), and voluntary
manslaughter, pursuant to NMSA 1978, Section 30-2-3(A) (1994). The case
proceeded to a preliminary hearing, as required by Article II, Section 14 of the New
Mexico Constitution when the State prosecutes a felony by criminal information,
rather than by grand jury indictment. The procedures in the district court for a
preliminary examination are set forth in Rule 5-302 NMRA.
{4} At the preliminary examination, the State introduced into evidence a video
recording of an hour-long interview of Defendant by law enforcement on the night
of the shooting. The entire record interview was played for the district court during
the preliminary hearing. Defendant’s interview was the only evidence of the events
leading up to the shooting of Victim that night.
{5} Defendant testified that he picked up Victim and Victim’s friend, Jonathan
Reyes, from a local bar. Reyes was so drunk he was on the ground, and Victim was
trying to get him on his feet. Once both passengers were in the vehicle, Defendant
noticed Reyes looked “woozy,” so he rolled down the window for him, and asked
both Victim and Reyes to let him know if Reyes needed to vomit, so he could pull
over. A minute or two later, as Defendant approached the entrance to I-25, Reyes
vomited all over the back seat of Defendant’s car.
{6} Defendant told his passengers that Uber would charge Victim (who had hailed
the ride) a clean-up fee, which angered Victim. It was undisputed that it was Uber’s
policy to charge a clean-up fee when a passenger vomited in a driver’s vehicle. When
Reyes looked like he was about to vomit again, Defendant pulled over on the
shoulder of the highway and asked both passengers to get out.
{7} Both passengers got out of the vehicle through the passenger’s side back door,
and Victim slammed the door behind him. Defendant opened the door, partially
stepped out of the driver’s seat, and told Victim not to slam his door. Victim began
pulling off his hat, sunglasses, and necklaces throwing them on the ground, and
started walking toward Defendant, moving from the passenger’s side of the vehicle,
around the tail end, toward the driver’s door. Reyes told Victim it was “not worth it”
and that they should just leave.
{8} Defendant told Victim to listen to his friend and advised both of them to go to
the nearest stoplight, which was visible about a block away, sober up, and call
another ride. Victim then pushed his friend aside and started moving toward
Defendant again. Defendant pulled out a concealed handgun (which he was
authorized to carry) stepped completely out of the driver’s side of the vehicle, aimed
the gun at Victim, and told Victim to “stop, back up, get away from me,” and to “let
me get in my car and leave.” Victim stopped momentarily, but then began
approaching Defendant again, yelling, “You want to fucking shoot me, then fucking
shoot me, you fucking pussy.” Defendant described backing up behind the driver’s
open door.
{9} Victim veered away, walking a couple of feet into the traffic lane, and waving
his hands at passing vehicles. Defendant saw at least one truck swerve to avoid
hitting Victim. Defendant indicated that while Victim was in the road, he thought
that maybe he could get into his car, which was still running with the door open, and
leave. Defendant reported feeling alarmed and confused by the fact that Victim had
walked directly into traffic. Defendant was afraid that a car might veer to avoid
hitting Victim and hit Defendant or his car, which remained on the shoulder, just out
of the lane of traffic. Defendant stated that all these thoughts rushed through his
mind and he could not be sure exactly what he was thinking, but, in any event, he
did not get back into his car and drive away. Instead, Defendant stood in front of his
car, on the other side of the open driver’s side door, still holding his gun.
{10} Victim then turned back toward the car. Victim was close to the driver’s side
open door and continued his approach. Victim said something like, “You are too
fucking pussy to shoot me. I’ll just run you over with your car.” When Victim
reached the open driver’s door, he began to reach his head and hands into the vehicle.
Without giving a verbal warning, Defendant fired his gun. Defendant told police he
“focused in on the center of mass . . . through the window.” Defendant shot Victim
repeatedly, continuing to shoot until Victim stopped moving. The medical examiner
testified Victim had been shot five times, three times in the back, once in the side,
and once in the shoulder. When asked by the police what he thought would happen
if he did not shoot Victim, Defendant said that he believed that Victim would have
either run him over or would have driven straight into traffic and injured others.
{11} The State called the medical examiner and a crime scene investigator who
testified that the physical evidence was consistent with Defendant’s story.
{12} At the conclusion of the preliminary examination, the district court ruled that
the State had failed to establish probable cause to believe that Defendant had
committed second-degree murder. The district court found probable cause for the
lesser included offense of voluntary manslaughter, concluding that because there
were both verbal threats and actions by Victim, there was sufficient provocation for
the fatal shooting. The district court asked the State to prepare a revised criminal
information charging only voluntary manslaughter and entered a written order
binding Defendant over for trial on voluntary manslaughter alone. The State appeals.
DISCUSSION
{13} Defendant argues, as a preliminary matter, that we lack jurisdiction to
consider the State’s appeal because the district court did not dismiss the charge of
second-degree murder, but merely “diminished” it to voluntary manslaughter. The
State contends that (1) in determining whether probable cause exists to bind over a
defendant for trial, the district court must view all evidence presented at the
preliminary hearing in the light most favorable to the State and draw all inferences
in the State’s favor; (2) whether there is sufficient provocation to reduce a charge of
second-degree murder to voluntary manslaughter is exclusively within the province
of the jury, and should not be the basis for a finding of no probable cause; (3) this
Court should review the district court’s application of the law of probable cause to
the facts applying a de novo standard of review. We agree with the State as to the
last point it makes on appeal: that the district court’s application of the law to the
facts should be reviewed by this Court de novo. We reject the deferential abuse of
discretion or reasonable basis standard advocated by Defendant and by the dissent.
Finally, reviewing the application of the law to the undisputed facts de novo, we
reverse the district court’s determination that there was no probable cause to bind
Defendant over for trial on second-degree murder.
{14} We address each of the issues raised on appeal in turn, beginning with
Defendant’s threshold question of whether this Court has jurisdiction to consider this
appeal.
I. This Court Has Jurisdiction to Consider This Appeal
{15} Defendant contends that we lack jurisdiction to consider the State’s appeal
under Section 39-3-3(B)(1), which allows the State to appeal to this Court “within
thirty days from a decision, judgment or order dismissing a complaint, indictment or
information as to any one or more counts[.]” Defendant argues that the district court
did not “dismiss” the State’s second-degree murder count, but rather merely
“diminished” the count to the lesser included offense of voluntary manslaughter. We
are not persuaded.
{16} When a jurisdictional issue is raised, this issue must be decided before this
Court reviews the other issues on appeal. Smith v. City of Santa Fe, 2007-NMSC-
055, ¶ 10, 142 N.M. 786, 171 P.3d 300. “We review jurisdictional issues de novo.”
State v. Lucero, 2017-NMCA-079, ¶ 10, 406 P.3d 530.
{17} Defendant’s claim that there was no appealable dismissal of the State’s
second-degree murder charge is based on the failure of the district court to issue an
order expressly stating that the second-degree murder charge is dismissed. Instead
of an order of dismissal, the district court directed the State to prepare an order,
which the court entered, binding Defendant over for trial solely on the offense of
voluntary manslaughter. The State’s original criminal information had charged both
second-degree murder and the lesser included offense of voluntary manslaughter as
an alternative.
{18} In determining whether an order or judgment is final, we look at the substance
and effect of the judgment or order, and not its form. State v. Ahasteen, 1998-
NMCA-158, ¶ 10, 126 N.M. 238, 968 P.2d 328, abrogated on other grounds by State
v. Savedra, 2010-NMSC-025, ¶ 9, 148 N.M. 301, 236 P.3d 20. The district court’s
order binding Defendant over only on the lesser included offense of voluntary
manslaughter, when both second-degree murder and involuntary manslaughter were
charged in the State’s criminal information, was functionally equivalent to a
dismissal of the second-degree murder charge. See State v. McCrary, 1982-NMCA-
003, ¶ 26, 97 N.M. 306, 639 P.2d 593 (holding that where the bind-over order only
included the lesser included offense, the state could not charge the defendant on the
greater offense). We, therefore, are not persuaded that Defendant has shown that the
district court failed to follow Rule 5-302(D)(1)’s injunction to “dismiss without
prejudice all felony charges for which probable cause does not exist.” State v. Carlos
A., 1996-NMCA-082, ¶ 8, 122 N.M. 241, 923 P.2d 608 (“[T]here is a presumption
of correctness in the rulings or decisions of the trial court and the party claiming
error must clearly show error.”).
{19} Defendant also argues that we lack jurisdiction on appeal because the
dismissal is without prejudice. Although Defendant is correct that the dismissal is
without prejudice and allows the State to again present the matter to a grand jury or
to refile its criminal information, Section 39-3-3(B)(1) clearly expresses the intent
of our Legislature to allow the state to appeal, even though the order is not final. The
appellate jurisdiction of this Court is determined by our Constitution and our
Legislature. See State v. Armijo, 1994-NMCA-136, ¶ 7, 118 N.M. 802, 887 P.2d
1269. Unlike civil appeals, where a final order is required to appeal, the State is
authorized in a criminal case to appeal any order dismissing one or more counts of
a complaint, indictment or information, regardless of whether the dismissal is with
prejudice or without. See id. ¶ 6 (holding that Section 39-3-3(B)(1) recognizes the
state’s constitutional right to appeal even though the matter is not final). We decline
to hold differently in this case. We accordingly conclude that this Court has
jurisdiction to decide this appeal.
II. The District Court at Preliminary Examination Serves as an Impartial
Fact-Finder
{20} Having determined that we have jurisdiction over the State’s appeal, we next
address the State’s argument that the court conducting the preliminary examination
must “view all evidence and draw all inferences in favor of the prosecution.” We
disagree.
{21} Article II, Section 14 of the New Mexico Constitution requires that before a
person “shall be held to answer for a capital, felonious or infamous crime,” the
prosecutor must either obtain an indictment by a grand jury or must file an
information, which then must be followed by a preliminary examination before a
magistrate or judge: “No person shall be so held on information without having had
a preliminary examination before an examining magistrate, or having waived such
preliminary examination.” 1 N.M. Const. art. II, § 14.
{22} The procedures required for a preliminary hearing in New Mexico do not
command sole reliance on the evidence offered by the state. Rather, the rules of
procedure adopted by our Supreme Court allow the defendant to subpoena and call
witnesses on the defendant’s behalf, Rule 5-302(B)(3); to cross-examine the state’s
witnesses, Rule 5-302(B)(4); and to raise objections based on the Rules of Evidence,
Rule 5-302(B)(5). These provisions require the district court to hear both the state’s
evidence and the evidence submitted by the defendant and “determine probable
cause from all the evidence.” State ex rel. Hanagan v. Armijo, 1963-NMSC-057,
¶ 11, 72 N.M. 50, 380 P.2d 196.
{23} Drawing all inferences from the evidence in the state’s favor would conflict
with the defendant’s right to present evidence and to have disputes of fact and
questions of credibility resolved by an impartial judge. See State v. Perez, 2014-
NMCA-023, ¶ 11, 318 P.3d 195 (criticizing a magistrate’s failure at a preliminary
1
Initially, under Article II, Section 14 of the New Mexico Constitution, only
magistrates could hold a preliminary examination. However, Article VI, Section 21
of the New Mexico Constitution, as amended in 1966, provides that “[d]istrict judges
and other judges or magistrates designated by law may hold preliminary
examinations in criminal cases.” Preliminary examinations held by the magistrate or
metropolitan court are governed by Rules 6-202 and 7-202 NMRA respectively,
which are substantially identical to Rule 5-302.
hearing to apply “more rigorous evidentiary requirements and [to engage in] careful
fact-finding” (alteration, internal quotation marks, and citation omitted)).
{24} We, therefore, reject the State’s claim that the district court must draw all
inferences from the evidence in favor of the State.
III. In a Preliminary Hearing, the District Court Must Determine Whether
Probable Cause Exists as to Every Element of the Charged Crime
{25} The State next argues that the district court should not have considered the
sufficiency of the provocation in determining whether there was probable cause to
bind Defendant over for trial on second-degree murder. The State claims that,
because it involves “a specific determination or finding,” which is an element of the
offense, only the jury can determine the sufficiency of the provocation.
{26} The cases relied on by the State on appeal address the question of whether the
jury at trial should be instructed on the element of sufficient provocation. See, e.g.,
Sells v. State, 1982-NMSC-125, ¶ 8, 98 N.M. 786, 653 P.2d 162. While the State is
correct that the jury, rather than the judge, is responsible for determining at trial
whether the defendant is guilty of each element of the charged crime beyond a
reasonable doubt, these cases do not address the role of the judge in determining
probable cause at a preliminary hearing, the matter at issue in this appeal.
{27} The State having presented no authority for its claim that it need not show
probable cause to believe the accused committed each element of the crime charged,
we do not address this issue further. See State v. Casares, 2014-NMCA-024, ¶ 18,
318 P.3d 200 (“We will not consider an issue if no authority is cited in support of
the issue, because absent cited authority to support an argument, we assume no such
authority exists.”).
IV. Our Review of the Application of the Law of Probable Cause to the Facts
Is De Novo
{28} We next turn to the standard of review applied by this Court to a lower court’s
decision applying the law of probable cause. The standard of review has not been
previously addressed and is, therefore, an issue of first impression.
{29} The State argues that because a probable cause determination is a mixed
question of law and fact, and because application of the probable cause standard
requires the exercise of judgment about the values that animate legal principles, our
review should be de novo. Defendant, in contrast, contends that our review should
defer to the district court’s decision and suggests either an abuse of discretion, or
“substantial basis” 2 standard. We agree with the State that our review of the
application of the law to the facts found by the district court should be de novo.
{30} Determining whether a prosecution is grounded in probable cause to believe
that a crime was committed, and the defendant likely committed it, involves the
2
“Substantial basis” is the deferential standard of review, described as
somewhere between substantial evidence and de novo review, adopted by our
Supreme Court for review on appeal of a finding of probable cause to issue a search
warrant. See State v. Williamson, 2009-NMSC-039, ¶ 30, 146 N.M. 488, 212 P.3d
376.
weighing of important legal values: the state has a strong interest in enforcing its
statutes and in being able to exercise its charging discretion in good faith, State v.
Heinsen, 2005-NMSC-035, ¶ 10, 138 N.M. 441, 121 P.3d 1040, and the accused has
a right to an independent evaluation of whether the state has met its burden of
demonstrating that a prosecution is neither hasty nor ill-considered, but is supported
by probable cause. See State ex rel. Whitehead v. Vescovi-Dial, 1997-NMCA-126,
¶¶ 5-6, 124 N.M. 375, 950 P.2d 818.
{31} In addition to requiring the weighing of competing values, a determination of
probable cause is not susceptible to “bright-line, hard-and-fast rules.” State v. Evans,
2009-NMSC-027, ¶ 11, 146 N.M. 319, 210 P.3d 216. The parameters of probable
cause are developed on a case-by-case basis, each case requiring the court to weigh,
under the totality of the unique circumstances of that case, whether the prosecution
has established reasonable grounds to believe that the accused likely committed the
crime charged. See Hanagan, 1963-NMSC-057, ¶ 11.
{32} The factors relied upon by our Supreme Court in Williamson, 2009-NMSC-
039, ¶ 28, to support the adoption of a deferential standard of review for a
magistrate’s decision to issue a search warrant do not apply to the probable cause
determination at preliminary hearing. The less demanding standard of review in
Williamson was adopted in recognition of the often pressing demand for a quick
decision on a warrant request in the lower court and to effectuate this state’s strong
preference in favor of the warrant process. Id. (noting that searches conducted
pursuant to a search warrant are reviewed under a less demanding standard “because
deference to the warrant process encourages police officers to procure a search
warrant”).
{33} Neither of these factors apply here. The decision as to probable cause to bind
a defendant over for trial is made well after the arrest, the filing of the information,
and the appointment of counsel, and follows an on-the-record evidentiary hearing.
See Rules 5-302, 6-202, 7-202 (setting the procedures for a preliminary hearing in
district court, magistrate court, and metropolitan court, respectively). Our review of
the district court’s determination of probable cause at a preliminary hearing is similar
to review on appeal of a district court’s pretrial determination of probable cause to
conduct a warrantless search. That decision, like the decision reviewed here, is made
after the fact, following full hearing by the district court. Our Supreme Court in
Williamson approved the continued use of a de novo standard of review for the
application of the law to the district court’s findings of fact when reviewing a pretrial
decision involving probable cause to conduct a warrantless search. 2009-NMSC-
039, ¶ 27.
{34} We therefore conclude that a de novo standard should be applied to our review
of the application of the law of probable cause to the district court’s findings of fact,
or to undisputed facts in the record.
V. The Application of the Law to the Undisputed Facts in This Case
{35} At a preliminary hearing, the state is required to establish only two
components: (1) a crime has been committed; and (2) probable cause exists to
believe the person charged committed it. State v. Vallejos, 1979-NMCA-089, ¶ 7, 93
N.M. 387, 600 P.2d 839. The district court at preliminary hearing is not deciding the
case; it is merely deciding whether the case should be tried. “The test at a preliminary
hearing is not whether guilt is established beyond a reasonable doubt, but whether
there is that degree of evidence to bring within reasonable probabilities the fact that
a crime was committed by the accused.” State v. Garcia, 1968-NMSC-119, ¶ 6, 79
N.M. 367, 443 P.2d 860. Reasonable grounds are “more than suspicion but less than
certainty.” State v. Goss, 1991-NMCA-003, ¶ 17, 111 N.M. 530, 807 P.2d 228.
“When ruling on probable cause, we deal only in the realm of reasonable
probabilities, and look to the totality of the circumstances to determine if probable
cause is present.” State v. Nyce, 2006-NMSC-026, ¶ 10, 139 N.M. 647, 137 P.3d
587, overruled on other grounds by Williamson, 2009-NMSC-039, ¶ 29 & n.1. If
probable cause is found, the defendant’s guilt or innocence remains a question for a
jury to decide following a criminal trial where the defendant is provided full due
process. See Garcia, 1968-NMSC-119, ¶ 5 (“The preliminary hearing and the trial
are separate and distinct.”).
{36} With these principles in mind, we are asked to determine whether the district
court erred in concluding that there is no probable cause to believe that Defendant
committed the crime of second-degree murder. The elements of the crime of second-
degree murder are (1) the defendant killed the victim; (2) the defendant knew that
his acts created a strong probability of death or great bodily harm, and (3) there was
not “sufficient provocation.” See UJI 14-210 NMRA. “ ‘Sufficient provocation’ can
be any action, conduct or circumstances which arouse anger, rage, fear, sudden
resentment, terror or other extreme emotions. The provocation must be such as
would affect the ability to reason and to cause a temporary loss of self control in an
ordinary person of average disposition.” UJI 14-222 NMRA.
{37} Defendant argued below, and contends on appeal, that the district court
correctly concluded that the evidence established that there was sufficient
provocation, ruling out the charge of second-degree murder and requiring that
Defendant be charged only with voluntary manslaughter. The State contends that the
undisputed facts are sufficient to establish a reasonable basis to believe that
Defendant likely committed second-degree murder, and that, therefore, the district
court erred in dismissing the second-degree murder charge and binding Defendant
over for trial only on voluntary manslaughter.
{38} The State points to undisputed evidence that it claims is sufficient to establish
probable cause. It was undisputed that Defendant pointed a gun at the unarmed
Victim early in the encounter, based on little provocation other than an argument
about the charge for cleaning up the vomit in the back seat of Defendant’s car.
Defendant opened his car door to reprimand Victim for slamming the door and got
out of his car to pull out his gun and point it at Victim, who was walking around the
car from the rear passenger’s side door at the time, and was unarmed. Defendant
admitted that he briefly considered driving away when Victim wandered into traffic
a few moments later, and that he failed to take advantage of the opportunity.
Defendant kept his gun in his hand, lowering it, but never returning it to its holster,
even when Victim turned away. It was only when Victim turned back toward the car
and saw Defendant still with his gun in his hand that Victim threatened to run
Defendant over, and started moving toward the open driver’s side door of the car.
And although Victim approached Defendant’s car and began to reach inside, he had
not yet stepped into the car and assumed control over it when Defendant, without a
verbal warning, opened fire. Victim was just beginning to stoop with his head and
hands reaching into the car when Defendant fired five shots into Victim’s side and
back through the open window of the driver’s side door, killing him.
{39} We conclude that the district court failed to correctly apply the probable cause
standard to these undisputed facts. This undisputed evidence supports a reasonable
belief that an ordinary person of average disposition in Defendant’s position would
not have been provoked to the point of utilizing lethal force, but would instead have
taken available opportunities to attain a position of safety from an unarmed man in
no immediate position to pose a threat to Defendant’s safety. The undisputed
evidence also supports a reasonable belief that Victim acted in response to
Defendant’s drawing a gun early in the encounter. If so, Victim’s subsequent
response in attempting to threaten Defendant with his own car cannot be relied upon
as sufficient provocation under the law. See State v. Gaitan, 2002-NMSC-007, ¶ 13,
131 N.M. 758, 42 P.3d 1207.
{40} The district court’s decision that there was no probable cause to charge
second-degree murder appears to be based on the district court’s conclusion that the
proof provided by the prosecution was not sufficient to convict Defendant of second-
degree murder, but only sufficient to convict of voluntary manslaughter. As this
Court held in Vallejos, however, a finding of no probable cause should not be based
on the absence of proof sufficient to convict. See 1979-NMCA-089, ¶ 12. Where the
evidence is sufficient to support a reasonable belief that Defendant committed the
crime charged, conclusive proof of each element of the offense can await trial. The
undisputed facts establish a triable issue as to whether an ordinary person of average
disposition would have been sufficiently provoked to temporarily lose self-control.
This decision should be made by a jury. The district court having found otherwise,
we reverse.
CONCLUSION
{41} For these above reasons, we reverse the district court’s dismissal of the State’s
information charging Defendant with second-degree murder. We remand to the
district court for reinstatement of the second-degree murder charge.
{42} IT IS SO ORDERED.
_________________________________
JANE B. YOHALEM, Judge
I CONCUR:
_________________________________
J. MILES HANISEE, Chief Judge
GERALD E. BACA, Judge (dissenting in part).
BACA, Judge (dissenting in part).
{43} I respectfully dissent from the majority’s conclusion that a de novo standard
of review is the correct standard of review to be applied when an appellate court
reviews a trial court’s determination of probable cause at a preliminary hearing. The
correct standard of review in that instance is abuse of discretion.
{44} I also respectfully dissent from the majority’s conclusion that the district
court’s finding of no probable cause was incorrect. Instead, I would affirm the
district court’s finding that the State failed to establish probable cause as to the
charge of second-degree murder.
{45} Before proceeding further, let’s consider, for a moment, the requirement,
purpose, and procedure of and for a preliminary hearing. A preliminary hearing is
required by our Constitution when the filing of a complaint or information
commences a criminal prosecution. N.M. Const. art. II, § 14. 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.” State v.
Coates, 1985-NMSC-091, ¶ 7, 103 N.M. 353, 707 P.2d 1163 (emphasis added),
abrogated on other grounds, State v. Brule, 1999-NMSC-026, ¶ 3, 127 N.M. 368,
981 P.2d 782.
{46} The preliminary hearing is a critical stage of the criminal prosecution. State v.
Vaughn, 1964-NMSC-158, ¶ 3, 74 N.M. 365, 393 P.2d 711. The preliminary hearing
can be held in a magistrate or district court. Rules 5-302, Rule 6-202. If the
prosecution is commenced in the district court by information, the district judge is
permitted to remand the case to the magistrate court for a preliminary hearing. Rule
5-302(E).
{47} The 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.” Whitehead, 1997-NMCA-126, ¶ 6. “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.
White, 2010-NMCA-043, ¶ 11, 148 N.M. 214, 232 P.3d 450 (emphases added)
(citing Vallejos, 1979-NMCA-089, ¶ 7). If at the conclusion of the preliminary
hearing, the court finds probable cause, the case, if in the magistrate court, is bound
over for trial in the district court. Rule 6-202(D)(3). If, on the other hand, at the
conclusion of the preliminary hearing, the court does not find probable cause, the
charge is dismissed without prejudice and the defendant is discharged. Rule 6-
202(D)(1).
{48} With this in mind, let’s turn to the case before us to determine what should be
the correct standard of review when an appellate court is asked to review the
probable cause determination of a trial court at the conclusion of a preliminary
hearing.
VI. A De Novo Standard of Review Is Incorrect
{49} The appropriate standard of review to apply in this case is an issue of first
impression. Given the import of our decision, one would expect a complete and
robust discussion and analysis of the issues leading to the majority’s conclusion.
Such is not the case. Based on an incomplete analysis of the issue, the majority
concluded that a de novo standard of review is the appropriate standard of review in
cases such as this. See Maj. Op. ¶¶ 28-34. I respectfully disagree and believe because
the majority applied the incorrect standard of review, they also reached the wrong
result.
{50} First, the majority compares a review of a lower court’s determination of
probable cause at preliminary hearing to a review of an appeal involving probable
cause to conduct a warrantless search. Maj. Op. ¶ 33. The majority, with minimal
analysis, concludes that the standard of review applied in the latter instance is the
correct standard to be applied in this case. Maj. Op. ¶¶ 33-34. They state that this is
the correct standard of review because the decision is made after the fact, following
a full hearing. In support of their conclusion, the majority cites Williamson, 2009-
NMSC-039, ¶ 27, stating:
Our Supreme Court in Williamson approved the continued use of a de
novo standard of review for the application of the law to the district
court’s findings of fact when reviewing a decision involving probable
cause to conduct a warrantless search.
We therefore conclude that a de novo standard should be applied
to our review of the application of the law of probable cause to the
district court’s findings of fact, or to undisputed facts in the record.
Maj. Op. ¶¶ 33-34 (citation omitted).
{51} The majority’s comparison of a review of a warrantless search to a preliminary
hearing is misplaced. The two are wholly dissimilar, except that each deals with the
existence/nonexistence of probable cause. The similarities end there. An example of
the stark difference between the two is that warrantless searches include a
presumption of unreasonableness. In contrast, preliminary hearings have no
presumptions for or against a party or issue. See State v. Rowell, 2008-NMSC-041,
¶ 10, 144 N.M. 371, 188 P.3d 95 (“Warrantless seizures are presumed to be
unreasonable and the [s]tate bears the burden of proving reasonableness.” (internal
quotation marks and citation omitted)); c.f. Whitehead, 1997-NMCA-126, ¶ 5 (“The
primary purpose of the preliminary examination is to provide an independent
evaluation of whether the state has met its burden of demonstrating probable cause.”
(emphasis added)).
{52} Second, the majority agrees with the State’s argument that this Court should
adopt a de novo standard of review because “provocation” in relation to second-
degree murder is a mixed question of law and fact. In support of this proposition, the
State relies upon State v. Attaway, 1994-NMSC-011, ¶ 6, 117 N.M. 141, 870 P.2d
103, and State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996.
These cases are easily distinguished and do not guide us in resolving the issues here.
Yet, the majority seems to accept the State’s argument without question.
{53} A review of these cases reveals that they do not support the majority’s
position. They are inapposite. In clarifying its holding in Attaway, our Supreme
Court said that it “did not hold that all mixed questions of law and fact must be
reviewed de novo. [It] simply held that, to determine the appropriate standard of
review, the reviewing court must balance interests of judicial administration and
public policy.” Williamson, 2009-NMSC-039, ¶ 25. Specifically, concerning
probable cause determinations, the Court said, “Accordingly, despite our broad
language in Attaway, none of the principles articulated therein support the
application of a de novo standard of review to an issuing court’s determination of
probable cause.” Williamson, 2009-NMSC-039, ¶ 25. Thus, Attaway does not
support a de novo review in this case.
{54} Salazar is even farther removed from the circumstances before us in this case.
Salazar had nothing to do with a trial court’s determination of probable cause.
Rather, Salazar is a case in which the issue was the propriety of jury instructions. In
Salazar, our Supreme Court held that where there is a question concerning the
appropriateness of jury instructions, the standard of review was de novo. It said,
“The propriety of jury instructions given or denied is a mixed question of law and
fact. Mixed questions of law and fact are reviewed de novo.” Salazar, 1997-NMSC-
044, ¶ 49. Consequently, because Salazar discusses review of jury instructions,
given or not given, an issue far different than the question before us in this case,
Salazar does not provide any guidance in resolving the issues presented in this case.
{55} Third, the majority, relying upon Williamson, 2009-NMSC-039, ¶ 28, chose
not to adopt a deferential standard of review in this instance stating that “the adoption
of a deferential standard of review for a magistrate’s decision to issue a search
warrant [does] not apply to the probable cause determination at preliminary
hearing,” because the standard in Williamson was adopted “in recognition of the
often pressing demand for a quick decision on a warrant request in the lower court
and to effectuate the state’s strong preference in favor of the warrant process.” Maj.
Op. ¶ 32.
{56} While I understand that the majority is seeking guidance from other
procedures or situations like that before us, I do not agree that cases such as
Williamson and the others cited by the majority are a sound basis for resolution of
this case. Much like Attaway, Williamson is a case involving the review of the
legality of a search. But unlike Attaway, the review was as to the propriety of the
issuance of search warrants and not a warrantless search. Here, too, and for the same
reasons I articulated above as to Attaway, I find the majority’s reliance on this case
is misplaced.
{57} In fact, in Williamson, our Supreme Court rejected this Court’s decision to
apply a de novo standard of review to the issuance of a lower court’s determination
of probable cause in a search warrant. 2009-NMSC-039, ¶¶ 1, 18. In Williamson, the
district court issued a search warrant based on probable cause that the defendant was
shipping narcotics via mail. Id. ¶¶ 2-6. Before trial, the defendant moved to suppress
the evidence gained from the search warrant because “the affidavit submitted in
support of the first search warrant failed to set forth sufficient facts to establish
probable cause.” Id. ¶ 7. The district court granted the defendant’s motion, and this
Court affirmed that decision. Id. ¶¶ 7-8. The Supreme Court rejected this Court’s
application of a de novo standard of review and adopted the more deferential
substantial basis standard of review. Id. ¶¶ 18, 29.
{58} Cases such as Attaway and Williamson involving challenges to searches,
warrantless or via search warrant, are most often appeals from a district court’s
granting or denial of a motion to suppress. Notably, in those cases, the reviewing
court gives deference to the prevailing party. “On appeal from the denial of a motion
to suppress, we determine under de novo review whether the district court correctly
applied the law to the facts.” State v. Garcia, 2009-NMSC-046, ¶ 9, 147 N.M. 134,
217 P.3d 1032. Viewing the facts “in a manner most favorable to the prevailing
party” and deferring to the district court’s “findings of historical fact so long as they
are supported by substantial evidence.” State v. Jason L., 2000-NMSC-018, ¶ 10,
129 N.M. 119, 2 P.3d 856 (internal quotation marks and citation omitted). Where
there are no findings of fact, we “indulge in all reasonable presumptions in support
of the district court’s ruling.” Id. ¶ 11 (internal quotation marks and citation omitted).
Absent a contrary indication in the record, “we presume the court believed all
uncontradicted evidence.” Id. Consequently, the majority’s reliance upon cases
reviewing warrantless searches and searches pursuant to a search warrant is
misplaced as these cases support applying a deferential standard of review rather
than a de novo standard of review.
{59} Lastly—and most importantly—I am concerned that the majority’s opinion is
contrary to the principles laid out by this Court in White, 2010-NMCA-043. In White,
the state, following a preliminary hearing before a magistrate judge, who found that
the state failed to establish probable cause for various felony offenses, filed identical
charges in district court. Id. ¶ 1. The district court remanded the matter to the
magistrate court for a preliminary hearing. Id. The same magistrate judge who
originally heard the case was assigned the case. The state peremptorily excused that
magistrate judge, and the case was assigned to another magistrate judge. Id. The case
proceeded to preliminary hearing before the new magistrate judge. Id. The state
presented the same evidence to the new magistrate judge at the second preliminary
hearing as it had to the original magistrate judge. Id. However, unlike the original
magistrate judge, the new magistrate judge found probable cause as to the charges
and bound the case over to the district court for trial. Id. On appeal, this Court held
that the state’s obtaining a probable cause determination on the same evidence with
two different lower court judges was improper. Id. ¶ 18. “The result of the procedure
employed by the [s]tate was to allow one magistrate to overrule another magistrate
on the issue of probable cause after a review of the same evidence. This is not
proper.” Id. ¶ 16.
{60} With White in mind, the majority’s decision to review de novo a lower court’s
decision regarding the determination of probable cause at a preliminary hearing
would have the practical effect of this Court playing the role of the second magistrate
judge in White. Essentially, in this case, because the State is dissatisfied with the
district court’s decision, the State is asking this Court to review the same evidence
previously ruled upon by a neutral and detached magistrate or district judge, which
White held to be improper.3 “It is axiomatic that a party may not do indirectly that
which the law does not permit directly.” Id.
{61} This Court recently held in State v. Ayon, 2021-NMCA-___, ___ P.3d ___
(No. A-1-CA-38812, July 27, 2021), that district courts do not have the authority to
Bear in mind that although the State is crying “foul” here due to the finding
3
of no probable cause by the district court, the prosecution of Defendant upon the
charge of second-degree murder is not precluded. The State, if it chooses, could
readily proceed against Defendant by grand jury indictment or represent the case to
the metropolitan or district court at a preliminary hearing upon new and additional
evidence. See State v. Chavez, 1979-NMCA-075, ¶ 20, 93 N.M. 270, 599 P.2d 1067;
see also State v. Peavler, 1975-NMSC-035, ¶ 8, 88 N.M. 125, 537 P.2d 1387; State
v. Burk, 1971-NMCA-018, ¶¶ 2-3, 82 N.M. 466, 483 P.2d 940.
determine if “evidence was illegally obtained at a preliminary hearing.” Id. ¶¶ 1, 17.
In making that holding, we highlighted the common purposes between grand jury
proceedings and preliminary hearings. Id. ¶ 11. Notably, we stated, “[d]ifferent rules
regarding the district court’s authority to review illegally obtained evidence based
solely on the choice of proceedings—grand jury proceedings as opposed to
preliminary hearings—may encourage favoring one proceeding over another,
undercutting efficient judicial administration and causing confusion.” Id. The same
reasoning applies to this case. Giving the State the option to appeal an unsuccessful
preliminary hearing to this Court, and as the majority would have it—with a de novo
nondeferential review, would be tantamount to encouraging “one proceeding over
another, undercutting efficient judicial administration and causing confusion.” Id. In
summary, for the reasons stated above, I am unpersuaded that the correct standard
of review is de novo.
VII. Abuse of Discretion Is the Correct Standard of Review
{62} The correct standard of review to be applied to the review of a court’s probable
cause determination at a preliminary hearing should be abuse of discretion.
{63} The majority failed to address Defendant’s argument that our case law
suggests that this Court has been deferential in the past and should continue to do so
on this issue.
{64} In Garcia, after a successful preliminary hearing that charged the defendant
with possession of marijuana, the defendant, on appeal, contended that the state
failed to produce sufficient evidence that the substance involved was marijuana
during the preliminary hearing. 1968-NMSC-119, ¶¶ 1-3. Although not stated
outright, it appears our Supreme Court reviewed the appeal under a sufficiency of
the evidence standard. Id. ¶ 7 (“The determinative question on appeal is whether the
evidence offered at the preliminary hearing was sufficient to meet the above tests
and to establish reasonable ground to satisfy the magistrate’s judgment. In this case,
we hold there was sufficient evidence.” (citation omitted)). Our Supreme Court held
that, for the purposes of the preliminary hearing, officer testimony that the substance
was marijuana, absent any chemical testing, was sufficient to bind over the charge
of possession of marijuana. Id.
{65} Although no standard of review was pronounced in Vallejos, this Court gave
considerable deference to the magistrate’s ruling at the preliminary hearing and,
without analyzing the evidence, held that the evidence presented at the preliminary
hearing was sufficient to bind the defendant over for murder. 1979-NMCA-089,
¶¶ 6-13. In Vallejos, after it was determined that the deceased was in the hospital for
two weeks before he died, the defendant argued that the state failed to prove that the
death resulted from the criminal agency and not from other natural causes. Id. ¶¶ 4,
6. There, we reasoned that “[t]he [s]tate is only required to produce evidence
sufficient to establish reasonable grounds for the [m]agistrate’s exercise of
judgment[,]” and concluded, “[t]he [m]agistrate had probable cause to believe [the]
defendant committed the crime of murder.” Id. ¶¶ 12-13.
{66} My reading of Vallejos and Garcia convinces me that this Court has at the
very least implicitly applied a deferential standard for preliminary hearing decisions
and that we should continue to do so. The application of a deferential standard for
reviewing a lower court’s preliminary hearing decision seems to make the most
sense, especially at this early stage of the prosecution. This is because even in cases
such as the one before us, where the presiding judicial officer found no probable
cause, the State could still proceed with the prosecution by grand jury indictment or
by means of a second preliminary hearing upon new or additional evidence. See
White, 2010-NMCA-043, ¶ 12. As well, this standard of review will safeguard
against the State shopping for a forum that will agree with its view of the evidence
despite a previous decision against it. Most importantly, this standard of review will
ensure that the citizens of our state will only be held to answer for criminal charges
that are supported by probable cause thereby “sav[ing] an innocent accused from the
humiliation and anxiety of a public prosecution.” Whitehead, 1997-NMCA-126, ¶ 6.
Consistent with Williamson and Attaway, judicial administration and public policy
weigh in favor of a deferential abuse of discretion standard of review. See
Williamson, 2009-NMSC-039, ¶ 25 (“[T]he reviewing court must balance interests
of judicial administration and public policy.”). “It is not the function of [the] court
to sit as a second preliminary hearing court to review the evidence of probable
cause.” People v. Ayala, 770 P.2d 1265, 1266 (Colo. 1989) (en banc). “When [the]
court is asked to make a case-by-case review of the trial court’s determination of the
sufficiency of the evidence, the time expended by the court serves little purpose and
is rarely productive of any precedential value.” Id. (internal quotation marks and
citation omitted).
{67} When reviewing a preliminary hearing decision from a lower court, we should
apply an abuse of discretion standard similar to other jurisdictions. “It is well-settled
that the standard to be observed in reviewing a magistrate’s determination at
preliminary examination is that the reviewing court should not disturb the
determination of the magistrate unless a clear abuse of discretion is demonstrated.”
People v. Doss, 276 N.W.2d 9, 13 (Mich. 1979). “The magistrate’s determination
regarding the existence of probable cause shall not be disturbed upon review unless
a clear abuse of discretion is demonstrated.” State v. Olsen, 462 N.W.2d 474, 476
(S.D. 1990). To do otherwise would permit the State a second-look at the same
evidence, without deferring to the trial courts who are in a better position to weigh
the evidence.
{68} Therefore, the correct standard of review should be abuse of discretion.
VIII. The District Did Not Abuse Its Discretion
{69} I would affirm the district court’s decision in this case.
{70} “An abuse of discretion occurs when the ruling is clearly against the logic and
effect of the facts and circumstances of the case. We cannot say the trial court abused
its discretion by its ruling unless we can characterize [the ruling] as clearly untenable
or not justified by reason.” State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971
P.2d 829 (internal quotation marks and citation omitted).
{71} The State failed to argue that the district court abused its discretion. Instead,
the State made three arguments on appeal. The State contends that (1) in determining
whether probable cause exists to bind over a defendant for trial, the district court
must view all evidence presented at the preliminary hearing in the light most
favorable to the State and draw all inferences in the State’s favor; (2) whether there
is sufficient provocation to reduce a charge of second-degree murder to voluntary
manslaughter is exclusively within the province of the jury, and should not be the
basis for a finding of no probable cause; (3) this Court should review the district
court’s application of the law of probable cause to the facts applying a de novo
standard of review.
{72} The majority rejected the State’s first two contentions for some very sound
reasons, and I agree with them. As to the third issue, I have to disagree with the
majority’s opinion for the reasons stated above.
{73} Therefore, without sufficient argument to the contrary, and upon reviewing
the record, I find that the district court did not abuse its discretion in determining
that the State failed to establish probable cause as to second-degree murder. I would
therefore affirm.
_____________________________
GERALD E. BACA, Judge