 1       IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

 2 Opinion Number:

 3 Filing Date: January 11, 2018


 4 NO. S-1-SC-36363

 5 STATE OF NEW MEXICO,

 6       Plaintiff-Appellee,

 7 v.

 8 ELEXUS GROVES,

 9       Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 Brett R. Loveless, District Judge


12 Bennett J. Baur, Chief Public Defender
13 Scott Wisniewski, Assistant Public Defender
14 Albuquerque, NM

15 for Appellant


16 Hector H. Balderas, Attorney General
17 Martha Anne Kelly, Assistant Attorney General
18 Santa Fe, NM

19 for Appellee
 1                                        OPINION

 2 DANIELS, Justice.

 3   {1}   Defendant Elexus Groves has been indicted on two counts of first-degree

 4 murder and other serious felony offenses. In this interlocutory appeal she challenges

 5 a district court order of pretrial detention that was based on two independent and

 6 alternative detention grounds contained in Article II, Section 13 of the New Mexico

 7 Constitution.

 8   {2}   The first ground was that Defendant was detainable under the provision that

 9 has been part of our Constitution since we became a state, providing an exception to

10 the general right to pretrial release for defendants charged with capital offenses.

11   {3}   The second ground was based on the new detention authority added by New

12 Mexico voters in the November 2016 general election, allowing denial of pretrial

13 release of a felony defendant if the prosecuting authority requests a hearing and

14 proves by clear and convincing evidence that no release conditions will reasonably

15 protect the safety of any other person or the community.

16   {4}   We hold that the district court’s detention order was lawfully based on the new

17 constitutional authority for pretrial detention of dangerous defendants, and we affirm

18 it on that ground. As a result, there is no need to address in this opinion the issues

19 Defendant raises relating to the alternative ground for the district court’s action based
 1 on the old capital-offense exception, a matter that we have addressed separately in

 2 State v. Ameer, S-1-SC-36395. See N.M. Sup. Ct. order (May 8, 2017).

 3 I.      FACTUAL AND PROCEDURAL BACKGROUND

 4   {5}   Shortly after 6 a.m. on Friday, January 18, 2017, a man and a woman stole a

 5 van in Albuquerque. The two attempted to flee pursuing police officers, driving

 6 recklessly at extremely high speeds through residential city streets. Defendant, shown

 7 to be the apparent driver of the stolen van by physical evidence and her postarrest

 8 statements to police, crashed it into another car at an intersection, killing a teenage

 9 girl, fatally injuring the girl’s mother, and breaking the leg of the girl’s three-year-old

10 brother. As logged by the van’s GPS data, a moment before the crash the van was

11 traveling at seventy-eight miles per hour in a thirty-five-mile-per-hour residential

12 zone, and on impact it was traveling at sixty-eight miles per hour.

13   {6}   After the fatal crash, the offenders jumped out of the stolen van and continued

14 their flight from the police. They ran through adjacent neighborhoods, climbing

15 backyard fences and attempting to distract residents so they could steal another

16 vehicle. After they succeeded in stealing another car, they escaped the pursuing

17 officers but left behind a number of clues that resulted in Defendant’s identification

18 and her arrest two days later.



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 1   {7}    Among the clues, officers found a cell phone in the back yard of one witness

 2 who had called police to report that two unknown people had jumped over his fence.

 3 Investigation of that cell phone revealed a Facebook account belonging to

 4 coparticipant Paul Garcia and a call record showing contact between Garcia and

 5 Defendant.

 6   {8}    Near the place where the second vehicle had been stolen, officers discovered

 7 a jacket containing a letter addressed to Defendant from an attorney offering to

 8 represent her in connection with her pending criminal charges.

 9   {9}    Officers obtained security video footage from a business along the offenders’

10 escape route that recorded two persons appearing to be Defendant and Garcia

11 crossing a parking lot. In the video, the person identified as Garcia was walking with

12 only one shoe, which appeared to match a shoe found at the wrecked van.

13   {10}   Following her arrest, Defendant initially appeared in metropolitan court, which

14 set release conditions including the requirement that she post a $100,000 secured

15 bond. The State filed a motion in district court to deny Defendant’s release pending

16 trial under the new provisions of Article II, Section 13 of the New Mexico

17 Constitution, arguing that no conditions of release a court could impose would protect

18 the safety of others. The case was promptly transferred to the district court, which has



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 1 exclusive pretrial detention authority as a statutory court of record. See Torrez v.

 2 Whitaker, 2018-NMSC-___, ¶¶ 71, 75, ___ P.3d, ___ (S-1-SC-36379, Jan. 11, 2018).

 3   {11}   After a hearing at which no witnesses personally testified for either side, the

 4 district court denied the State’s detention motion, continued the $100,000 secured

 5 bond, and imposed additional conditions of release. Because that order has not been

 6 appealed, we need not address it further.

 7   {12}   A grand jury then indicted Defendant on multiple charges related to the deadly

 8 January 18 chase, including two counts of first-degree felony murder, carrying

 9 potential sentences of life imprisonment. NMSA 1978, § 30-2-1(A)(2) (1994)

10 (statutorily classifying felony murder as a “capital felony”); see also NMSA 1978, §

11 31-18-14 (2009) (providing that a person convicted of a “capital felony” shall be

12 sentenced to life imprisonment).

13   {13}   The day after indictment, the State filed a second detention motion, based

14 exclusively on the new authority in Article II, Section 13 allowing denial of pretrial

15 release when no release conditions will reasonably protect the safety of others. To

16 support its request, the new motion proffered details of the newly-indicted offenses

17 and a pattern of past criminal conduct, including significantly a pending prosecution

18 in Sandoval County. That case, based on occurrences just a few weeks earlier, also



                                               4
 1 involved a stolen vehicle and a high-speed attempted escape from police by

 2 Defendant and coparticipant Paul Garcia that ended with their crashing the stolen

 3 vehicle. The motion recited that in the Sandoval County case Defendant was on

 4 pretrial release conditions that she already had violated by a failure to appear by the

 5 time she committed the offenses in this case.

 6   {14}   That postindictment detention motion first came before a temporary

 7 arraignment judge, who heard presentations of counsel and a pretrial services

 8 officer’s risk-assessment-instrument-based determination that she could not “make

 9 a [release] recommendation that would reasonably ensure public safety.” The

10 arraignment judge entered an order for detention relying on the “nature and

11 circumstances of the offense charged,” Defendant’s “past conduct, history relating to

12 drug or alcohol abuse, criminal history and record concerning appearance at court

13 proceedings,” and “the nature and seriousness of the danger to any person or the

14 community.”

15   {15}   Defense counsel filed a motion to review that detention order, arguing that

16 collateral estoppel principles precluded the arraignment judge from ordering

17 detention after a previous judge had denied detention and that “no evidence was

18 presented to [the arraignment judge] upon which she could base her ruling that



                                              5
 1 pretrial detention [w]as appropriate.”

 2   {16}   At the hearing on Defendant’s motion to review the detention order, the district

 3 judge who was assigned to preside over postindictment proceedings conducted an

 4 evidentiary hearing at which he considered arguments and factual representations of

 5 counsel, the contents of a number of court files reflecting Defendant’s criminal

 6 history, the risk assessment provided by pretrial services, and the transcript of the

 7 prior hearing at which detention was ordered. No live witness testimony was

 8 presented by either party.

 9   {17}   In addition to the factual circumstances underlying the current prosecution that

10 were recounted in documents in the court files and described earlier in this opinion,

11 the district court expressed concern about Defendant’s conduct in the recent Sandoval

12 County case. The court’s concerns included Defendant’s attempt to avoid arrest in

13 that case by participating in a reckless high-speed chase that ended only after crashing

14 the stolen getaway vehicle. The court also noted that the release conditions ordered

15 in the Sandoval County case before Defendant committed similar unlawful conduct

16 in this case included the requirement that she not violate any state laws. The court

17 also pointed out that even before committing the crimes in this case Defendant failed

18 to comply with her release conditions in that pending case by failing to appear for a



                                                6
 1 scheduled preliminary hearing, causing issuance of a warrant for her arrest that had

 2 not been served at the time of the events in this case.

 3   {18}   At the conclusion of the hearing the district court denied Defendant’s motion

 4 to review the prior detention order and ordered Defendant to be detained pending

 5 trial. One of the stated legal grounds for the detention order, a theory that had not

 6 been proposed by the State but was raised sua sponte by the district court, was that

 7 the district judge believed Defendant was charged with a “capital offense” where

 8 “‘the proof is evident or the presumption great.’”

 9   {19}   As an alternative ground for detention, the court agreed with the State and

10 concluded that Defendant’s history of dangerous conduct and failure to abide by

11 requirements of previous release orders established that “no conditions of release

12 [would] reasonably protect the safety of any other person or the community from

13 Defendant.” The court also rejected Defendant’s collateral estoppel argument, both

14 because the interlocutory metropolitan court order of release or detention is not a final

15 determination of an issue of pretrial detention and because the intervening grand jury

16 indictment represented a significant change in circumstances.

17   {20}   Defendant appealed to this Court to review the final detention order, arguing

18 (1) that she did not have fair notice that the capital-offense theory was going to be a



                                               7
 1 basis of detention and therefore did not prepare to defend against it; (2) that the

 2 evidence at the hearing was insufficient to establish that the proof was evident or the

 3 presumption great under the capital-offense theory; and (3) the evidence, which did

 4 not include live witness testimony, was insufficient to justify detention under the new

 5 detention-for-dangerousness constitutional grounds for denial of pretrial release.

 6   {21}   We scheduled oral argument and at its conclusion announced our affirmance

 7 of the detention order on the detention-for-dangerousness ground, without the need

 8 to reach other issues, and advised that we would follow up with this published

 9 opinion. See New Mexico Supreme Court order, April 12, 2017 (affirming the district

10 court).

11 II.      DISCUSSION

12   {22}   Article VI, Section 2 of the New Mexico Constitution assigns this Court

13 exclusive jurisdiction over appeals from final district court judgments “imposing a

14 sentence of death or life imprisonment.” This Court correspondingly has exclusive

15 jurisdiction over interlocutory appeals, including appeals from interlocutory release

16 and detention orders in cases like this one in which a defendant is charged with

17 first-degree murder, an offense that currently carries a possible life sentence. State v.

18 Brown, 2014-NMSC-038, ¶ 10, 338 P.3d 1276 (citing State v. Smallwood,



                                               8
 1 2007-NMSC-005, ¶¶ 6-11, 141 N.M. 178, 152 P.3d 821 in holding that the Supreme

 2 Court has exclusive jurisdiction over appeals of release conditions in first-degree

 3 murder prosecutions).

 4   {23}   NMSA 1978, Section 39-3-3(A)(2) (1972) permits an appeal from an “order

 5 denying relief on a petition to review conditions of release,” and Article II, Section

 6 13 of the New Mexico Constitution requires that “[a]n appeal from an order denying

 7 bail shall be given preference over all other matters.”

 8   {24}   Rule 12-204(D)(2)(b) NMRA, governing procedures in appeals from bail

 9 orders, provides that a district court decision shall be set aside only if it is shown that

10 the decision (1) “is arbitrary, capricious, or reflects an abuse of discretion,” (2) “is not

11 supported by substantial evidence,” or (3) “is otherwise not in accordance with law.”

12   {25}   “An abuse of discretion occurs when the court exceeds the bounds of reason,

13 all the circumstances before it being considered.” Brown, 2014-NMSC-038, ¶ 43

14 (internal quotation marks and citation omitted). Similarly, a decision “is arbitrary and

15 capricious if it is unreasonable or without a rational basis, when viewed in light of the

16 whole record.” N.M. Att’y Gen. v. N.M. Pub. Reg. Comm’n, 2013-NMSC-042, ¶ 10,

17 309 P.3d 89 (internal quotation marks and citation omitted). “Substantial evidence is

18 such relevant evidence that a reasonable mind would find adequate to support a



                                                9
 1 conclusion.” State ex rel. King v. B&B Inv. Grp., Inc., 2014-NMSC-024, ¶ 12, 329

 2 P.3d 658 (internal quotation marks and citation omitted).

 3   {26}   With those principles in mind, we now address the merits of Defendant’s

 4 appeal.

 5   {27}   The proceedings below occurred shortly after adoption of the constitutional

 6 amendment creating new authority for detention of defendants who are found to be

 7 too dangerous to be released pending trial and before promulgation of our procedural

 8 rules governing application of the broad constitutional language, in particular new

 9 Rule 5-409 NMRA, governing detention proceedings in district court.

10   {28}   In Torrez, 2018-NMSC-___, we traced the history and purpose of the

11 detention-for-dangerousness constitutional amendment and provided guidance for

12 courts and litigants in conducting detention hearings. This is the first opinion in

13 which we apply Torrez’s guidance in an appellate review of a detention ruling.

14   {29}   As we explained in Torrez, a detention hearing requires a judge to make three

15 categories of determinations in deciding whether pretrial detention should be ordered:

16 (1) “which information in any form carries sufficient indicia of reliability to be

17 worthy of consideration,” (2) “the extent to which that information would indicate

18 that a defendant may be likely to pose a threat to the safety of others if released



                                              10
 1 pending trial,” and (3) “whether any potential pretrial release conditions ‘will

 2 reasonably protect the safety’ of others, as required by the new constitutional standard

 3 in Article II, Section 13.” Torrez, 2018-NMSC-___, ¶¶ 99-102. Our appellate role in

 4 determining whether substantial evidence supported the district court decision and

 5 whether the judge abused his discretion or acted arbitrarily or capriciously necessarily

 6 must also take those analyses into consideration.

 7   {30}   Looking at the first of those factors, we conclude that the district court was

 8 entitled to take into account the factually undisputed information from court and law

 9 enforcement files that has been summarized in this opinion. See id. ¶ 110 (holding

10 that live witnesses may but are not required to be called at detention hearings and that

11 judges “may consider all reasonably reliable information, without regard to strictures

12 of the formal rules of evidence”); see also Rule 5-401(C) NMRA (summarizing

13 information a court may consider in determining release conditions that might

14 “reasonably ensure the appearance of the defendant as required and the safety of any

15 other person and the community”).

16   {31}   There is nothing in the record to raise serious doubts about the credibility of

17 the police officers who conducted the investigations and prepared the resulting sworn

18 and unsworn reports or of the independent victims and other witnesses who reported



                                              11
 1 their own interlocking and cross-corroborating observations of Defendant’s activities

 2 to the police. In its totality the factual information about Defendant’s current and

 3 previous offenses that was relied on by the district court carried strong indicia of

 4 reliability in establishing the historical facts summarized earlier in this opinion.

 5   {32}   The next required step is to consider how that information bears on an

 6 assessment of “the nature and seriousness of the danger to any person or the

 7 community that would be posed by the defendant’s release,” as required by Rule 5-

 8 401(C)(4) in determining appropriate release conditions. The information in the

 9 record strongly supports the conclusion that Defendant has uncontrolled propensities

10 to persist in the commission of unlawful and gravely dangerous conduct, as

11 exemplified by three vehicle thefts in just a matter of a few weeks, each followed by

12 recklessly dangerous flights from authorities on the public streets. See Rule 5-

13 401(C)(3)(a) (allowing the court’s assessment to take into account “the history and

14 characteristics of the defendant, including . . . the defendant’s character, physical and

15 mental condition, . . . past conduct, . . . [and] criminal history”). The undisputed facts

16 include that two of the vehicle thefts and high-speed flights ended in vehicle crashes,

17 the second causing the deaths of two people and the serious injury of another, just

18 minutes before Defendant fled again with her partner, stole a third vehicle, and



                                               12
 1 engaged in yet another motorized flight from authorities.

 2   {33}   We emphasize that the relevant consideration for a court is not the category or

 3 punishability of the charged crime. See Torrez, 2018-NMSC-___, ¶ 101. In a

 4 detention hearing the court’s focused concern is not to impose punishment for past

 5 conduct but instead to assess a defendant’s likely future conduct. See id. (explaining

 6 that “the particular facts and circumstances in currently charged cases, as well as a

 7 defendant’s prior conduct, charged or uncharged, can be helpful in making reasoned

 8 predictions of future dangerousness”).

 9   {34}   In this case, Defendant’s past conduct created a strong basis for reasoned

10 inferences of her likely future conduct. Defendant had not simply committed an

11 isolated act of theft or of reckless driving. In the record before the district court in this

12 case, the totality of Defendant’s conduct fully justifies the district court’s

13 determination that she presented an unacceptable risk of continued endangerment of

14 the public in the same manner if released, a determination well within the bounds of

15 reason and a proper exercise of judicial discretion. See Brown, 2014-NMSC-038, ¶

16 13.

17   {35}   As to the third part of the detention analysis, several facts supported the district

18 court’s determination by clear and convincing evidence that no conditions of pretrial



                                                 13
 1 release the court could impose under Rule 5-401 would reasonably protect the safety

 2 of any other person or the community.

 3   {36}   The clear and convincing evidence standard is a recognized term of art in our

 4 jurisprudence. It refers to “evidence that instantly tilt[s] the scales in the affirmative

 5 when weighed against the evidence in opposition and the fact finder’s mind is left

 6 with an abiding conviction that the evidence is true.” In re Locatelli, 2007-NMSC-

 7 029, ¶ 7, 141 N.M. 755, 161 P.3d 252 (alteration in original) (internal quotation

 8 marks and citation omitted).

 9   {37}   The determination whether available release conditions would reasonably

10 protect others does not require scientific accuracy any more than any other prediction

11 of future human behavior. The key word is reasonably, which requires the exercise

12 of reasoned judgment. As we noted in Brown, we cannot demand that human beings

13 in judicial robes be omniscient. See 2014-NMSC-038, ¶ 54, (recognizing that “no

14 judge can predict the future with certainty or guarantee that a person will appear in

15 court or refrain from committing future crimes”). Instead, we require that judges

16 consider available information, exercise reason, and make thoughtful judgments.

17   {38}   In this case there were strong reasons supporting a conclusion that no available

18 release conditions a court could impose would protect against Defendant’s likely



                                               14
 1 future dangerous conduct. Apart from her record of continued criminal activity and

 2 dangerous conduct while on previous conditions of release, Defendant had

 3 demonstrated a pattern of refusal to comply with directions of the courts and of

 4 police. When Defendant committed the offenses in this case, she was on supervised

 5 release in two other cases. Defendant’s conditions of prior release required, in part,

 6 that she not violate any state laws and that she appear at scheduled court proceedings,

 7 yet she refused to abide by those conditions. As the State pointed out below, even if

 8 the court were to impose conditions as extreme as GPS monitoring, she could still

 9 steal another vehicle and resist arrest by engaging in another dangerous or, as in this

10 case, deadly escape from police.

11   {39}   We conclude that there was substantial evidence in the record to support the

12 district court’s detention decision and that the court neither abused its discretion nor

13 acted arbitrarily or capriciously in finding by clear and convincing evidence that no

14 conditions of release that could be ordered for Defendant would reasonably protect

15 the safety of others.

16   {40}   An additional item of information that the district court took into account,

17 although unnecessary to our finding of substantial evidence on this record, was the

18 high-dangerousness score Defendant received on the Arnold Public Safety



                                              15
 1 Assessment (PSA), a validated risk assessment that has been approved by this Court

 2 in the Second Judicial District as a pilot project. See Rule 5-401(C) (authorizing

 3 consideration of “any available results of a pretrial risk assessment instrument

 4 approved by the Supreme Court for use in the jurisdiction” in making release

 5 decisions). The PSA is a nationally recognized scientifically validated risk assessment

 6 instrument that courts in an increasing number of jurisdictions use as an aid, though

 7 never as the only factor, in making detention and release decisions. See, e.g., State v.

 8 Robinson, 160 A.3d 1, 11 (2017) (describing New Jersey’s statutorily-required use

 9 of the PSA and emphasizing that “judges consider the PSA but make the ultimate

10 decision on release after reviewing other relevant information as well”); Arnold

11 Foundation, The Front End of the Criminal Justice System, Public Safety Assessment,

12 available     at   http://www.arnoldfoundation.org/initiative/criminal-justice/crime

13 -prevention/public-safety-assessment/ (last visited January 6, 2018) (describing the

14 purpose and operation of the PSA and naming some of the thirty-eight United States

15 jurisdictions that have implemented it).

16   {41}   As a result of the 2016 constitutional reform, neither our courts nor our

17 communities are helpless to prevent release of provably dangerous offenders, as was

18 the reality under the old money-based system. Instead, our courts are authorized now



                                              16
 1 to make evidence-based pretrial release and detention decisions that better protect

 2 public safety and provide for a more fair pretrial justice system.

 3   {42}   In line with those reforms, this Court has also amended Rule 5-403 NMRA,

 4 Rule 6-403 NMRA, Rule 7-403 NMRA, and Rule 8-403 NMRA to clearly authorize

 5 all criminal courts to amend a defendant’s release conditions or revoke pretrial release

 6 entirely for commission of new crimes or other violations of release orders, without

 7 waiting for a noncompliant defendant to endanger or victimize someone else.

 8   {43}   This case is a good example of the wisdom of those constitutional and court-

 9 rule changes. There is no reason in law or logic that should compel our judges to do

10 the same things over and over and expect different results. In this case, there is no

11 reason for a court to believe that court-ordered release conditions would do any better

12 in controlling Defendant’s repeated dangerous conduct than release conditions have

13 done in the past. In fact, Defendant has demonstrated by her own conduct that the

14 opposite result is likely.

15   {44}   We agree with the United States Supreme Court that under our American

16 system of justice “liberty is the norm, and detention prior to trial or without trial is the

17 carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987)

18 (upholding the federal detention-for-dangerousness statute). But in this case and on



                                                17
 1 this record the district court justifiably determined that this defendant has earned a

 2 place in that carefully limited exception, not as punishment for her past acts but to

 3 protect others from her predictable future dangerousness.

 4 III.     CONCLUSION

 5   {45}   As we stated in our bench ruling following oral argument and in a

 6 contemporaneous written order, we affirm the order of the district court denying

 7 pretrial release to Defendant under the new authority in Article II, Section 13 of the

 8 New Mexico Constitution permitting courts of record to deny pretrial release by clear

 9 and convincing evidence that no release conditions will reasonably protect the safety

10 of any other person or the community.

11   {46}   IT IS SO ORDERED.



12                                         ___________________________________
13                                         CHARLES W. DANIELS, Justice

14 WE CONCUR:



15 ___________________________________
16 JUDITH K. NAKAMURA, Chief Justice




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1 ___________________________________
2 PETRA JIMENEZ MAES, Justice



3 ___________________________________
4 EDWARD L. CHÁVEZ, Justice



5 ___________________________________
6 BARBARA J. VIGIL, Justice




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