State v. Martinez

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellant,
4 v. NO. 31,242
5 JOSEPH MARTINEZ,
6 Defendant-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Denise Barela Shepherd, District Judge
9 Gary K. King, Attorney General
10 Margaret McLean, Assistant Attorney General
11 Joel Jacobsen, Assistant Attorney General
12 Santa Fe, NM
13 for Appellant
14 Bregman & Loman, P.C.
15 Eric Loman
16 Albuquerque, NM
17 for Appellee
18 MEMORANDUM OPINION
19 VANZI, Judge.
1 The State appeals from a district court’s order suppressing the evidence
2 discovered from a warrantless search of Defendant’s home and suppressing statements
3 made by Defendant and an alleged victim. We issued a notice of proposed summary
4 disposition, proposing to affirm. Defendant filed a memorandum in support. The
5 State filed a response, indicating that it does not wish to pursue the issues contained
6 in the docketing statement. [Response 1-4] Instead, the State asks this Court to limit
7 the effect of the order suppressing the alleged victim’s statements on the victim’s right
8 to freely testify in any future proceeding. [Response 5-10] For the reasons that follow,
9 we deny the State’s request and affirm.
10 The State does not contend that the alleged victim’s testimony was wrongfully
11 excluded, as it did in its docketing statement. [DS 6] Rather, the State complains that
12 the suppression order is ambiguous with regard to the basis for suppressing the alleged
13 victim’s testimony and, therefore, may “become a source of vexatious and difficult
14 litigation.” [Response 6] The State asks us to prevent the possibility that res judicata
15 or collateral estoppel principles could limit the victim’s right to provide testimony in
16 future proceedings against Defendant. [Response 7-10]
17 These matters were not raised in the district court and, therefore, are not
18 properly before us on appeal. See In Re Aaron L., 2000-NMCA-024, ¶ 10, 128 N.M.
19 641, 996 P.2d 431 (stating that, on appeal, the reviewing court will not consider issues
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1 not raised in the trial court unless the issues involve matters of fundamental error).
2 Moreover, the State’s request in effect asks this Court to issue an advisory opinion
3 “that would have no practical effect on the current litigation . . . and resolve a
4 hypothetical situation that may or may not arise.” City of Sunland Park v. Harris
5 News, Inc., 2005-NMCA-128, ¶ 50, 138 N.M. 588, 124 P.3d 566 (internal quotation
6 marks and citation omitted). We deny the State’s request.
7 For the reasons stated in our notice, we affirm the district court’s suppression
8 of the evidence.
9 IT IS SO ORDERED.
10 __________________________________
11 LINDA M. VANZI, Judge
12 WE CONCUR:
13 _________________________________
14 JAMES J. WECHSLER, Judge
15 _________________________________
16 JONATHAN B. SUTIN, Judge
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