State v. Carver ( 2023 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-40080
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ISAIAH L. CARVER,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Donna J. Mowrer, District Court Judge
Raúl Torrez, Attorney General
Santa Fe, NM
Erica Schiff, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Joelle N. Gonzales, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
IVES, Judge.
{1} Defendant Isaiah Carver appeals the revocation of his probation, arguing that his
right to due process was violated in two ways: (1) the district court judge appeared for
the evidentiary hearing remotely rather than in person, and (2) the district court did not
identify the evidence it relied on to revoke his probation. We agree with Defendant on
the first issue and therefore reverse and remand without reaching the second.
DISCUSSION
{2} Because Defendant’s constitutional claim presents a question of law, our review
is de novo with deference to the factual findings of the district court. See, e.g., State v.
Guthrie, 2011-NMSC-014, ¶ 22, 150 N.M. 84, 257 P.3d 904.
{3} Pursuant to the district court’s notice of hearing, Defendant’s probation violation
hearing was to be held in person at the courthouse in Clovis, New Mexico. On the date
of the hearing, the parties, their counsel, and the witnesses were physically present in
the courthouse in Clovis, but the judge, who ordinarily sits in the courthouse in Portales,
participated virtually via an audio-visual computer program. Defendant objected to this
format at the outset of the hearing, contending that the court’s virtual participation in the
hearing deprived him of his due process right to confront witnesses and present his
case in front of a fact-finder who was present in person. The district court overruled the
objection, stating, “We have had remote appearances” and “the rule requires live
witnesses, there’s no provision that the court has to be live.”
{4} In support of his claim of error on appeal, Defendant cites to state and federal
precedent construing constitutional due process requirements applicable to probation
revocation hearings. See Morrissey v. Brewer, 408 U.S. 471 (1972) (adopting due
process standards in the context of parole revocation); Gagnon v. Scarpelli, 411 U.S.
778 (1973) (extending Morrissey’s due process requirements to revocation of
probation); Guthrie, 2011-NMSC-014, ¶¶ 12-13 (discussing and applying Morrissey and
Gagnon). Although Defendant acknowledges that—as a probationer facing potential
revocation—he was not entitled to “the full panoply of rights due a defendant in a
criminal trial,” Guthrie, 2011-NMSC-014, ¶ 10 (text only) (quoting Morrissey, 408 U.S. at
480), he states that he was nevertheless entitled to “some protections” under the
Fourteenth Amendment’s Due Process Clause as interpreted by Morrissey, Gagnon,
and Guthrie. Most pertinent to his claim of error, Defendant emphasizes that these
cases impose certain “minimum requirements” on the process afforded at probation
revocation hearings, including an “opportunity to be heard in person and to present
witnesses and documentary evidence; [and] the right to confront and cross-examine
adverse witnesses (unless the hearing officer specifically finds good cause for not
allowing confrontation).” Guthrie, 2011-NMSC-014, ¶ 12 (emphasis, internal quotation
marks, and citation omitted).
{5} On the basis of these “minimum requirements,” we understand Defendant to
argue that probation revocation hearings are generally required to be held in person in
the physical presence of the fact-finder. In particular, Defendant places special
emphasis on the language of the relevant precedents, which constitutionally guarantees
probation revocation defendants an “‘opportunity to be heard in person.’” See id.(quoting Gagnon, 411 U.S. at 786) (emphasis added). We agree that this language,
understood in its ordinary sense, indicates that probation revocation hearings are
generally to be held fully in person. That is, we believe that the phrase “opportunity to
be heard in person” indicates that both the person being “heard” (the defendant) as well
as the person doing the “hearing” (the fact-finder) are “in person.” The State’s argument
to the contrary—namely, that the constitutional guarantee of an “opportunity to be heard
in person” requires the physical presence of the defendant and the witnesses, but not
the fact-finder—is unpersuasive. We thus agree with Defendant that due process
ordinarily requires a probation revocation hearing to be held in person.
{6} However, Defendant does not contend that this default assumption is absolute.
Indeed, he states that virtual participation in probation revocation hearings may be
constitutionally permissible if there is a “particularized showing of necessity in the
service of an important public policy,” as contemplated by a pair of Confrontation Clause
cases: Maryland v. Craig, 497 U.S. 836 (1990) and State v. Smith, 2013-NMCA-081,
308 P.3d 135. Picking up on this allowance, the State argues that even if a “showing of
good cause” is required—in the manner of Defendant’s proposed Craig/Smith
analysis—the COVID-19 public health emergency and its related restrictions “establish
such good cause.” On the basis of these arguments, we assume without deciding that
the constitutional guarantee to an “opportunity to be heard in person” at a probation
revocation hearing is not absolute. And because the parties have built their arguments
on the terms “good cause” or “particularized necessity,” for the purpose of this
nonprecedential opinion we assess the merits of this appeal using that vocabulary.
{7} Under this standard, we conclude the district court erred in holding a hybrid-
virtual hearing because there is no indication in the record of the existence of any “good
cause” or “particularized necessity” for the judge to appear virtually while the parties,
attorneys, and witnesses were present in the courtroom. Although the State on appeal
contends that the district court’s virtual appearance was justified by the COVID-19
public health emergency and its accompanying safety protocols, we find no basis for
this assertion in the record. The notice of hearing states, “All parties must appear IN
PERSON for this hearing.” In addition, the subpoenas commanding in-person witness
attendance at the hearing state that “courts have resumed in-person appearances at all
hearings.” Moreover, in making his objection at the hearing, Defendant’s counsel noted
that the district court’s virtual appearance was objectionable, in part, because the courts
in Defendant’s district were “no longer in COVID restrictions,” and the judge’s absence
was “not for a public health issue.” In overruling the objection, the district court stated
only that “we have had remote appearances” and “the rule requires live witnesses,
there’s no provision that the court has to be live.”1 That is, the district court never
1For the first time on appeal, the State also argues that the district court’s remote appearance was
supported by the then-applicable New Mexico Supreme Court Public Health Emergency Protocols, which
the State claims creates a “presumption that [Defendant’s h]earing would be conducted remotely.” See
Order, In the Matter of the Amendment of the New Mexico Judiciary Public Health Emergency Protocols,
No. 21-8500-021 at 20-23 (N.M. Aug. 16, 2021), https://www.nmcourts.gov/wp-
content/uploads/2021/08/Supreme-Court-Order-No.-21-8500-021-and-Amended-Emergency-Court-
Protocols-effective-8-23-2021-1.pdf. Because the potential application of these protocols was never
discussed in the district court, the State effectively asks us to affirm the district court’s ruling under the
doctrine of right for any reason. See Freeman v. Fairchild, 2018-NMSC-023, ¶ 30, 416 P.3d 264 (“Under
the right for any reason doctrine, an appellate court may affirm a district court ruling on a ground not
relied upon by the district court if (1) reliance on the new ground would not be unfair to the appellant, and
(2) there is substantial evidence to support the ground on which the appellate court relies.” (text only)
(citation omitted)). However, we decline to do so because it would be unfair to Defendant, who never had
an opportunity to respond to the State’s argument in the district court and there is little evidence in the
addressed the claims that there was a lack of applicable COVID restrictions, and the
district court did not justify the judge’s remote appearance for any reason related to
protecting the health of hearing participants or the public. In sum, we see no basis in the
record for concluding that the judge’s virtual appearance was based on any kind of
“particularized necessity” or “good cause,” COVID-related or otherwise. And we do not
believe that the fact that hearings were, for a time, conducted virtually based on COVID
restrictions establishes a lawful basis for virtual proceedings as a general matter.
{8} Based on the arguments presented by the parties, we conclude that Defendant
was deprived of his constitutional right to be heard in person. Everyone involved in the
hearing, other than the judge, participated in person, and the record does not include
any good cause or other justification for the judge’s virtual participation.
CONCLUSION
{9} We reverse and remand for a new hearing.
{10} IT IS SO ORDERED.
ZACHARY A. IVES, Judge
WE CONCUR:
J. MILES HANISEE, Judge
MEGAN P. DUFFY, Judge
record supporting the position. See id. In fact, the record indicates that the district court did not treat the
protocol’s presumption as controlling. The protocol states that probation revocation hearings for
defendants who are in custody, as Defendant was, were presumed to “be conducted remotely through
telephonic or audio-visual connection for court appearances by all attorneys, litigants, and witnesses,
unless the judge presiding over the proceeding, in consultation with the chief judge of the judicial district,
orders otherwise.” Order No. 21-8500-021 at 22. But here all “attorneys, litigants, and witnesses” at
Defendant’s hearing were ordered to appear in person.