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                                                                      New Mexico Compilation
                                                                    Commission, Santa Fe, NM
                                                                   '00'05- 16:28:58 2018.01.30

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2018-NMSC-004

Filing Date: December 28, 2017

Docket No. S-1-SC-36786

STATE OF NEW MEXICO

       Plaintiff-Appellant,

v.

MARIAH FERRY,

       Defendant-Appellee.

APPEAL OF DISTRICT COURT ORDER
Reed S. Sheppard, District Judge

Raúl Torrez, District Attorney
James W. Grayson, Assistant District Attorney
Albuquerque, NM

for Appellant

Clark, Jones & Pennington, LLC
Thomas M. Clark
Santa Fe, NM

for Appellee

                                         OPINION

CHÁVEZ, Justice.

{1}     The State filed a Motion for Pretrial Detention in this case involving a charge of
first-degree murder, which was denied by the district court judge after an evidentiary
hearing. The State appealed to this Court pursuant to Rule 12-204(C) NMRA and consistent
with State v. Smallwood, 2007-NMSC-005, ¶ 11, 141 N.M. 178, 152 P.3d 821 (holding that
“the legislature intended for [the Supreme Court] to have jurisdiction over interlocutory
appeals in situations where a defendant may possibly be sentenced to life imprisonment or
death”). On page 3 of its Motion, the State contends that the district court judge, relying on

                                              1
State v. Brown, 2014-NMSC-038, 338 P.3d 1276, “apparently determined that the charges
themselves—no matter how serious the crime and how dangerous a manner in which it is
committed—are never sufficient to detain.” The State also contends that the district court
judge abused his discretion and asks us to clarify that a district court judge “should neither
disregard the nature or circumstances of the crime nor consider the charges to the exclusion
of all other factors.”

{2}      Discretion is the authority of a district court judge to select among multiple correct
outcomes. Appellate courts analyze a district court judge’s discretionary decisions by first,
without deferring to the district court judge, deciding whether proper legal principles were
correctly applied. If proper legal principles correctly applied only lead to one correct
outcome there is no discretion for the district court judge to exercise. If the district court
judge arrives at the only correct outcome, the district court judge is affirmed; otherwise the
district court judge is reversed. If proper legal principles correctly applied may lead to
multiple correct outcomes, deference is given to the district court judge because if reasonable
minds can differ regarding the outcome, the district court judge should be affirmed. In this
case the dominating issue is whether the district court judge correctly applied proper legal
principles.

{3}     Article II, Section 13 provides that “[b]ail may be denied by a court of record
pending trial for a defendant charged with a felony if the prosecuting authority . . . proves
by clear and convincing evidence that no release conditions will reasonably protect the
safety of any other person or the community.” We previously announced that the
prosecuting authority—and defense counsel—may offer evidence in many different forms
during a detention hearing. The litigants may introduce live testimony and proffer
documentary evidence in a form that carries sufficient indicia of reliability, and the Rules
of Evidence do not apply. See Transcript of Bench Ruling by New Mexico Supreme Court
in Torrez v. Whitaker, No. S-1-SC-36379, at 9.1 The prosecuting authority has the burden
of proving by clear and convincing evidence that (1) the defendant poses a future threat to
others or the community, and (2) no conditions of release will reasonably protect the safety
of another person or the community. See id.

{4}     In this case Detective Jodi Gonterman testified concerning her investigation of two
separate alleged crimes involving Defendant, Mariah Ferry. The State also tendered, without
objection, documentary exhibits which included the criminal complaints in two cases filed
against Ferry; a prior court order releasing Defendant on specific supervisory conditions; and
a letter from the mother of one of the victims. In the first case Ferry is alleged to have
participated in the kidnapping and beating of a victim, and in the present case she is alleged
to have participated in the kidnapping, mutilation, and murder of another victim and to have
tampered with evidence. The details of the crimes in this case are adequately set forth in


       1
       available at www.nmcourts.gov/Court-Decisions-on-Pretrial-Release-and-Detention-
Reform.aspx (last visited December 28, 2017)

                                              2
paragraphs 2 through 7 of the Order Denying State of New Mexico’s Expedited Motion For
Pretrial Detention. The district court judge also specified in paragraph 13 of his Order2 that

        [t]he State argues that no conditions of release can protect the community
        based on the nature of the charges. While the Court agrees the nature of the
        charges are disturbing, the New Mexico Supreme Court has explained that
        the court may not base a pretrial release decision entirely on a single
        factor—like the seriousness of the current charges—“to the exclusion of all
        other factors.”

(quoting State v. Brown, 2014-NMSC-038, ¶ 51, 338 P.3d 1276).

{5}     We understand the State to interpret the district court judge’s ruling to mean that the
seriousness of the nature and circumstances of the underlying crime can never in and of itself
be sufficient to prove a defendant’s future dangerousness. We believe this is one reasonable
interpretation of paragraph 13. However, another reasonable interpretation, as will be
explained in paragraph 8, infra, is that the district court judge did consider the seriousness
of the underlying nature and circumstances of the crime but was persuaded by other evidence
that certain conditions of release could reasonably protect the safety of others and the
community. The fact that there are two reasonable interpretations of the district court
judge’s Order leads us to conclude that a remand is necessary to allow the district court
judge to clarify what he intended by his written Order.

{6}      We also conclude that it is necessary to make clear that the nature and circumstances
of a defendant’s conduct in the underlying charged offense(s) may be sufficient, despite
other evidence, to sustain the State’s burden of proving by clear and convincing evidence
that the defendant poses a threat to others or the community. If the State meets this initial
burden of proof the State must still prove by clear and convincing evidence, under Article
II, Section 13, that “no release conditions will reasonably protect the safety of any other
person or the community.” For example, the State may introduce evidence of a defendant’s
defiance of restraining orders; dangerous conduct in violation of a court order; intimidation
tactics; threatening behavior; stalking of witnesses, victims, or victims’ family members; or
inability or refusal to abide by conditions of release in other cases. The potential evidence
of a person’s dangerous inability or refusal to abide by the directives of an authority figure
are so variable that it is difficult to catalog all of the circumstances that might satisfy the
State’s burden of proof.



        2
         The judge’s written Order governs in these proceedings. See Rule 5-409(G) NMRA
(requiring a written order). See also State v. Diaz, 1983-NMSC-090, ¶ 4, 100 N.M. 524, 673
P.2d 501 (“It is well established that an oral ruling by the trial court is not a final judgment,
and that the trial court can change such ruling at any time before the entry of written
judgment.”).

                                               3
{7}      We emphasize that the litigants and the court must not automatically consider any
one factor to be dispositive in pretrial detention hearings. For this reason district 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. Rule 5-409(H)-(I). Of course the
district court judge’s decision will be limited by what evidence the litigants present.

{8}      In this case the district court judge verbally announced that he had considered all of
the factors he was required to consider, noting that the crimes charged are very gruesome
and heinous. The judge also stated that the gruesome nature of the crime could not be the
only factor to consider in rendering a detention decision. The judge considered Defendant’s
age and that she had previously been released with supervision without any violations as
evidenced by no one from pretrial services stating otherwise. Finally the judge stated that
he considered the Public Safety Assessment provided to the court. Based on the information
the judge considered, he continued the previous conditions of release imposed on Defendant
weeks earlier by a different district court judge. The conditions included (1) no contact
whatsoever with the codefendants, the victims or their family members, presumably directly
or indirectly;3 (2) no possession or use of alcohol or prohibited substances; (3) no possession
of firearms, dangerous weapons, knives, or objects that can be considered deadly weapons;
and (4) the requirement that Defendant wear an ankle bracelet at all times while released.
At the request of the State, the district court judge announced there would be zero tolerance
for any violation of the conditions of release no matter how small the violation. The
prosecuting authority did not offer any reasons why the conditions of release were
inadequate to reasonably provide for the safety of a person or the community. Had the
district court judge been as clear in his written Order, as he was in his oral ruling, the written
Order before this court likely would not have been subject to more than one reasonable
interpretation. For this reason we encourage judges to carefully reduce to writing all reliable
information they have considered when deciding to detain or not to detain a defendant.

{9}     However, because of the ambiguity in the written Order we remand to the district
court judge to clarify his written Order. If the district court judge interpreted State v. Brown
as precluding the court from finding that reliable evidence of the nature and circumstances
of the crime can never, in and of itself, be sufficient for the State to meet its burden of
proving a defendant’s future dangerousness, the court misinterpreted Brown. We also note
that our Brown opinion was concerned with money bail. The concern for the danger to the
public does not justify setting money bail at any amount because defendants do not forfeit
money bail when they commit new offenses. See Brown, 2014-NMSC-038, ¶ 21. But as we
have explained, the nature and circumstances of a defendant’s conduct in the underlying
charged offense(s) may be sufficient, despite other evidence, to sustain the State’s burden
of proving by clear and convincing evidence that the defendant poses a threat to others or


        3
        Whether Defendant was required to report to her supervising officer if her
codefendants contacted or attempted to contact her directly or through others is not clear in
the Order.

                                                4
the community. If the court so finds, the court must also be persuaded by clear and
convincing evidence that there are no conditions of release that will reasonably protect the
safety of others or the community before the court may enter an order for the pretrial
detention of a defendant.

{10}   IT IS SO ORDERED.

                                             ___________________________________
                                             EDWARD L. CHÁVEZ, Justice

WE CONCUR:

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
CHARLES W. DANIELS, Justice

____________________________________
BARBARA J. VIGIL, Justice

JUDITH K. NAKAMURA, Chief Justice,
not participating




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