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                                                          New Mexico Compilation
                                                        Commission, Santa Fe, NM
                                                       '00'05- 15:20:37 2012.12.18
Certiorari Denied, October 10, 2012, No. 33,803

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-116

Filing Date: August 14, 2012

Docket No. 31,269

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

DAVID CASTILLO,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Robert M. Schwartz, District Judge

Gary K. King, Attorney General
Olga Serafimova, Assistant Attorney General
Santa Fe, NM

for Appellee

Streubel Kochersberger Mortimer, LLC
Donald F. Kochersberger III
Albuquerque, NM

for Appellant

                                      OPINION

HANISEE, Judge.

{1}     Defendant David Castillo was sentenced following an agreement with the State in
which he pleaded no contest to criminal sexual penetration in the second degree.
Defendant’s ensuing nine-year incarcerative sentence was suspended, and he was placed on
supervised probation for a total of five years, commencing on December 16, 2005. As a
special condition of his probation, Defendant was required to “enter and successfully

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complete a sex offender specific therapy to include polygraph testing as deemed necessary
by the therapist.” In April 2010, the State filed a motion to revoke Defendant’s probation
for failure to successfully complete a sex offender treatment program. A probation
revocation hearing was held, and Defendant’s probation was revoked on December 14, 2010,
a single day prior to its scheduled completion.

{2}      On appeal, Defendant argues that his right to confrontation was violated when the
district court allowed the head of Forensic Therapy Service, the sex offender treatment
center at which Defendant was a patient, to testify about the results of his polygraph
examination—rather than requiring that the State call the individual who actually
administered the polygraph test. Based on our New Mexico Supreme Court’s opinion in
State v. Guthrie, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904, Defendant’s claim of error
requires this Court to consider “the need for, and utility of, confrontation with respect to the
truth-finding process and in light of the particular case at hand, including the specific charge
pressed against the probationer.” Id. ¶ 43. Having taken this standard into consideration,
we conclude that Defendant’s Fourteenth Amendment right to due process was violated by
the district court’s allowance of testimony regarding Defendant’s polygraph results by
someone other than the person who actually administered and interpreted the polygraph test.
Accordingly, we reverse.

BACKGROUND

{3}     Prior to the probation revocation hearing, Defendant filed a motion in limine or, in
the alternative, a motion for continuance. In it, Defendant primarily sought to exclude any
testimony regarding the results of his polygraph test from a witness other than Ralph Trotter,
who administered Defendant’s polygraph test. Defendant argued that he possessed a due
process right to confront the witnesses against him even in the context of a probation
revocation proceeding, and absent a showing that there was good cause for not producing
Mr. Trotter, the State should be barred from proceeding on the petition to revoke if it
planned to present evidence regarding the polygraph. Defendant specifically asserted that
absent Mr. Trotter’s testimony and availability for cross-examination, Defendant would be
unable to test Mr. Trotter’s credentials and the manner in which the purportedly failed
polygraph test was effectuated, and thus the district court lacked a constitutionally adequate
basis to conclude that the asserted polygraph results were reliable. Alternatively, Defendant
requested an extension of time to permit his chosen expert polygraph examiner the
opportunity to review the materials related to the polygraph test and provide testimony
regarding his own independent conclusions.

{4}     At the hearing, Defendant maintained that the polygraph results were central to
proving the existence of any probation violation. The State countered that the probation
violation was not based exclusively on an allegation that Defendant failed his polygraph, but
on the broader allegation that Defendant had “failed to fully cooperate and complete the sex
offender treatment.” The State added that Therese Duran, the supervisor of Forensic
Therapy Service, could competently testify regarding “the problems with the polygraphs,

                                               2
[that] they changed the course of treatment and still failed, because [D]efendant refused to
engage.” Defendant insisted that the core of Ms. Duran’s testimony would be as follows:
“If the person is not admitting that they did the offense conduct, and the polygraph tests
indicate that they are lying about that, then they consider the person to be noncompliant with
the therapy.” Thus, while Defendant argued that the polygraph evidence was central to the
proof of the probation violation, the State argued that evidence of the polygraph was not
actually necessary to prove the violation. The district court took the motion in limine under
advisement pending Ms. Duran’s testimony.

{5}      Ms. Duran testified that she supervised Defendant’s sex offender treatment and made
the ultimate decision to terminate him from the program in late March 2010, roughly six
months prior to Defendant’s completion of his five-year term of probation. She discussed
the two distinct ways polygraphs were used by Forensic Therapy Service as part of the sex
offender treatment program. Maintenance polygraphs were used to ensure compliance with
the terms of probation—such as the prohibition against being within the specified vicinity
of children. Ms. Duran testified that Defendant had passed all of his maintenance polygraph
exams. Polygraph exams were additionally conducted regarding the sexual offenses with
which the client was charged in order to determine the best course of treatment. According
to Ms. Duran’s testimony, Forensic Therapy Service sought to address all charges initially
brought against the client (not only those to which the client pleaded or was convicted of),
and if there were discrepancies between those charges and the client’s explanation of events,
Forensic Therapy Service relied on polygraphs to resolve the incongruence.

{6}      According to Ms. Duran, based on Defendant’s polygraph results, he was considered
to be in “denial” and was placed on a different treatment path aimed at achieving
accountability for all conduct with which he was originally charged. Ms. Duran did not
provide any testimony as to the manners in which Defendant’s polygraph test was conducted
or its results were interpreted to reach the conclusion that he was being deceptive. Instead,
Ms. Duran summarily stated that Defendant was placed in the “failed polygraph group” due
to an indication of deception. She further maintained that he “significantly failed all of the
polygraphs related to his sexual offense,” but that she did not “recall what the numbers
were,” only that they were “clearly deceptive.”

{7}    Ms. Duran also discussed how Forensic Therapy Service utilized different therapists
and therapies in an effort to progress beyond Defendant’s “deception” to achieve a
therapeutically “accountable phase.” According to Ms. Duran, the difficulty with
Defendant’s progress was his lack of “[a]ny form of accountability[.]” Once his initial
polygraph tests showed deception, Ms. Duran testified that there was no way for Defendant
to have graduated from the program without admitting the underlying offense. Ultimately,
according to Ms. Duran, Defendant was released from the program for noncompliance
“[b]ecause he was not being accountable.”

{8}     Following Ms. Duran’s testimony, Defendant reasserted his consistently argued
position:

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        In order for them to admit the testimony regarding the polygraph test results,
        pass or fail, they need more than Ms. Duran coming up and saying she got a
        report from someone. I don’t think the fact that she got a report is a reliable
        indication of whether or not the polygraph test was performed by somebody
        with the ability to perform it, that it was performed with the proper
        procedures, that the results obtained were reliable, what the level of
        deception—if that’s even an important indication for the polygraph
        tests—were. What we’re talking about is a scientific test. And the only
        person who testified has just seen the yes-or-no answer. . . .

        I think Ms. Duran’s pretty clear. The reason [Defendant] was terminated
        from the program was because he did not admit to the offense conduct. And
        the reason [why] that is a problem is because they believe he failed polygraph
        tests, indicating that he was lying about that. If he had passed these
        polygraph tests, by Ms. Duran’s own admission, he would be out of this
        program. He would be in a different one, maybe. But he would have
        successfully completed their program.

The State reiterated that it was not the polygraph but Defendant’s continued denial that
justified revocation. The district court found that the polygraphs were “a component of
[Defendant’s] failure to finish the program” but that there were also “other behaviors and
actions that were interpreted by the staff [as D]efendant . . . not engaging.” The district court
therefore denied Defendant’s motion in limine. Following supplemental testimony by
Defendant’s probation officer, which did not bear further on the issue of the polygraph, the
district court revoked Defendant’s probation. The court further elected not to continue the
proceeding in order to accommodate the alternative relief requested by Defendant—an
opportunity to present his own expert.

DISCUSSION

{9}     “Revocation of probation deprives an individual, not of the absolute liberty to which
every citizen is entitled, but only of the conditional liberty properly dependent on observance
of special [probation] restrictions.” Guthrie, 2011-NMSC-014, ¶ 10 (alteration in original)
(quoting Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973)) (internal quotation marks omitted).
“Because loss of probation is loss of only conditional liberty, ‘the full panoply of rights due
a defendant in a [criminal trial] do [ ] not apply.’” Id. (alteration in original) (quoting
Morrisey v. Brewer, 408 U.S. 471, 480 (1972)). Hence, “[t]he right protected in probation
revocation[ cases] is not the [S]ixth [A]mendment right to confrontation, guaranteed every
accused in a criminal trial, but rather the more generally worded right to due process of law
secured by the [F]ourteenth [A]mendment.” Guthrie, 2011-NMSC-014, ¶ 12. Due process
includes “the right to confront and cross-examine adverse witnesses (unless the hearing
officer specifically finds good cause for not allowing confrontation).” State v. Vigil, 97 N.M.
749, 751, 643 P.2d 618, 620 (Ct. App. 1982) (internal quotation marks omitted). Whether
Defendant’s due process right to confrontation was violated is a question of law. We review

                                               4
questions of law de novo while deferring to the district court’s factual findings. Guthrie,
2011-NMSC-014, ¶ 22.

{10} Our Supreme Court has directed the courts—when discharging their duty to find
good cause for lack of confrontation—to consider “whether confrontation of the witness is
essential to the truth-finding process in the context of probation revocation.” Id. ¶ 2. This
entails considering whether the challenged hearsay evidence “relate[s] to objective or
subjective observations, assert[s] that a probationer acted or failed to act as required, or
support[s] facts that are central or ancillary to the ultimate probation violation inquiry.” Id.
¶¶ 34, 37. Stated more specifically, our courts are to consider whether: (1) “the assertion [is]
central to the reasons for revocation[] or . . . collateral,” (2) “the assertion [is] contested by
the probationer, or . . . the state [is] being asked to produce a witness to establish something
that is essentially uncontroverted,” and (3) the assertion is “inherently reliable.” Id. ¶¶ 34,
36.

{11} Our Supreme Court presented the consideration of these factors as falling on a
sliding scale “with extremes at either end and much balancing and weighing of competing
interests in between.” Id. ¶ 40. On one end of the spectrum, Guthrie provides that good
cause for not requiring confrontation will most likely exist where

        the state’s evidence is uncontested, corroborated by other reliable evidence,
        and documented by a reliable source without a motive to fabricate, or
        possibly situations where the evidence is about an objective conclusion, a
        routine recording, or a negative fact, making the demeanor and credibility of
        the witness less relevant to the truth-finding process.

Id. On the other end of the spectrum, Guthrie provides that good cause will most likely not
exist where

        evidence is contested by the defendant, unsupported or contradicted, and its
        source has a motive to fabricate; it is about a subjective, judgment-based
        observation that is subject to inference and interpretation, and makes a
        conclusion that is central to the necessary proof that the defendant violated
        probation.

Id. ¶ 41.

{12} We begin our consideration of the utility of confrontation under the particular facts
of this case by looking at the nature of the evidence presented. Defendant argues that in
contrast to the evidence challenged in Guthrie, the polygraph evidence here was central and
contested, as opposed to being merely objective, routine or independently proven. In
Guthrie, the defendant was placed on supervised probation and agreed to attend a ninety-day
residential treatment program as part of a plea agreement. Id. ¶ 3. The State filed a motion
to revoke probation based on the defendant’s failure to complete the program. Id. ¶ 4. At

                                                5
the probation revocation hearing, the defendant’s probation officer did not testify; rather, the
probation officer’s supervisor testified and referred to documents contained in the
defendant’s probation file. Id. ¶¶ 4-6. Based on the supervisor’s testimony, the district court
revoked the defendant’s probation. In affirming the revocation, our Supreme Court relied
on the fact that the defendant did not contest the allegation that he failed to complete the
treatment program and that the defendant’s non-compliance was “an objective, negative, and
rather routine fact” that “was easily and reliably established to a reasonable degree of
certainty by a written statement from the treatment center.” Id. ¶ 46. In addition, our
Supreme Court noted that there was little that could be gained by testimony from a direct
employee of the treatment center under the facts of that case, and that the district court had
independently corroborated the State’s testimony by taking judicial notice that it would have
been factually impossible for the defendant to have completed the treatment as required,
given the time and place of the defendant’s arrest. Id. ¶¶ 47-48.

{13} “[T]he procedural protections inherent in the truth-finding process, such as a hearing
or confrontation, are only necessary when the truth of the state’s allegation is challenged.”
Id. ¶ 35. Thus, in Guthrie, our Supreme Court considered to be important the fact that the
“[d]efendant never created any doubt in the truth of the evidence offered by the State.” Id.
¶ 34. It further noted that many courts would question the need for “a live witness to
establish an evidentiary fact (failure to complete) that is never challenged for its accuracy
or its reliability.” Id. In contrast, Defendant here emphatically challenged the reliability of
the polygraph evidence in his motion in limine, his arguments on the issue, and his
secondary effort to attain a continuance in order to present expert evidence rebutting the
State’s polygraph testimony.

{14} In addition, Defendant demonstrated through cross-examination of the State’s
witnesses that the polygraph evidence was central to the State’s allegation that Defendant
had failed to complete his treatment program. Ms. Duran testified that Defendant’s
termination from the program was based upon his lack of accountability for the conduct with
which he was originally charged. According to Ms. Duran, Defendant was only required to
admit to the conduct with which he was first charged because his polygraph indicated that
his denial of it was deceptive. If, on the other hand, Defendant’s polygraph had not indicated
deception, no such admission would have been required. Because the testimony at the
probation revocation hearing clearly indicates that Defendant’s ultimate failure to admit the
offense conduct led to his termination from the program, the polygraph evidence that
established the unresolved conflict was “central to the reasons for revocation.” Id.

{15} Furthermore, Defendant accurately points out that polygraph evidence is neither
objective nor routine. Instead, polygraph examiners are required to be licensed and adhere
to specific procedures in the administration and interpretation of polygraph exams. Ms.
Duran’s foundation-less testimony that Defendant’s polygraph examination indicated
deception therefore gives this Court pause. “Evidence supporting subjective conclusions,
which may require confrontation, includes sensory-based or judgment-based determinations
or interpretations[.]” Id. ¶ 38. The conclusion testified to by Ms. Duran in explaining why

                                               6
Defendant was terminated from the sex offender treatment program was the direct product
of Mr. Trotter’s interpretation of the polygraph results and his judgment-based determination
that the results indicated deception. The State characterizes the evidence at issue as “the
straightforward fact of treatment completion.” However, the incompletion of treatment in
this instance is not premised on an objective fact as was the case in Guthrie; rather, the
genesis of Defendant’s failure to complete treatment was based on the State’s evidentiary
assertions and argument regarding the results of his polygraph exam. See id. ¶¶ 8, 48 (noting
that the defendant’s failure to complete treatment was based on him not being present at the
treatment facility). According to the Guthrie analysis, such subjective conclusions weigh
compellingly in favor of requiring an opportunity for cross-examination. Id. ¶ 37 (citing
Bailey v. State, 612 A.2d 288, 294 (Md. 1992) (“A second consideration may be whether the
proffered hearsay is an objective fact reported by the declarant or instead contains
conclusions which ought to be tested by cross-examination.”)).

{16} The State does not directly address Defendant’s argument that the evidence was
central, contested, and not objective or routine. Instead, the State contends that evidence
regarding the polygraph was not necessary to proving Defendant’s violation of the
conditions of his probation and that the burden to subpoena Mr. Trotter was on Defendant
because the polygraph results were evidence of mitigation—in other words, a reason
Defendant was unable to complete the treatment rather than proof of a violation of his
probation. Despite the State’s contention that introduction of evidence regarding the
polygraph results was unnecessary to prove a violation of Defendant’s conditions of
probation, that is not the case before us. Rather, the State chose to introduce the polygraph
results through Ms. Duran, along with Defendant’s refusal to admit all initially charged
conduct, as well as the corresponding changes in Defendant’s treatment and his ultimate
termination from the program. In the context of a probation revocation proceeding, we look
to Guthrie to see if the evidence the State has elected to present situationally triggers a right
of confrontation. Based on the centrality of the polygraph evidence in this circumstance, the
subjective and interpretative nature of it, and the fact that Defendant challenged its
reliability, we conclude that this case falls on the “no good cause” end of the spectrum
established in Guthrie. Id. ¶ 41. Contrary to the circumstances in Guthrie, the utility of
confrontation under these facts is evident.

CONCLUSION

{17} For the reasons stated above, we hold that Defendant’s Fourteenth Amendment right
to due process was violated by the district court’s decision to allow Ms. Duran to testify
exclusively regarding Defendant’s polygraph results. Accordingly, we reverse and remand
for further proceedings.

{18}    IT IS SO ORDERED.

                                                ____________________________________
                                                J. MILES HANISEE, Judge

                                               7
WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
LINDA M. VANZI, Judge

Topic Index for State v. Castillo, No. 31,269

APPEAL AND ERROR
Remand
Standard of Review

CONSTITUTIONAL LAW
Confrontation
Due Process

CRIMINAL LAW
Criminal Sexual Penetration

CRIMINAL PROCEDURE
Probation
Revocation of Probation

EVIDENCE
Polygraph Examination




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