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                                                                   New Mexico Compilation
                                                                 Commission, Santa Fe, NM
                                                                '00'05- 11:09:37 2019.02.08

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2019-NMCA-010

Filing Date: October 23, 2018

Docket No. A-1-CA-36336

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

AUSTIN VERRET,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Fernando R. Macias, District Judge

Hector H. Balderas, Attorney General
Eran Sharon, Assistant Attorney General
Santa Fe, NM

for Appellee

Cardenas Law Firm, LLC
Christopher K.P. Cardenas
Las Cruces, NM

for Appellant

                                        OPINION

GALLEGOS, Judge.

{1}     Defendant Austin Verret filed a motion in Doña Ana County Magistrate Court to
exclude the arresting officer from testifying at his trial for aggravated driving while under
the influence of intoxicating liquor or drugs (DWI), based on Defendant’s inability to
secure a pretrial witness interview with the officer. The magistrate court granted the
motion and excluded the officer from testifying. In response, the State filed a nolle
prosequi in magistrate court and refiled Defendant’s case in district court pursuant to
State v. Heinsen, 2005-NMSC-035, 138 N.M. 441, 121 P.3d 1040. Defendant then
requested that the district court conduct an independent review of his pretrial motion to
exclude the arresting officer in accordance with City of Farmington v. Piñon-Garcia,



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2013-NMSC-046, 311 P.3d 446. The district court, noting that Piñon-Garcia involved an
appeal from an order of dismissal, concluded that the requirement for an independent
review of the pretrial motion filed in the lower court does not apply to a case where the
state refiles the charges in district court. Instead, the district court decided the motion
anew based on the facts as they existed in the district court. For the reasons that follow,
we conclude that the district court erred in concluding that Piñon-Garcia does not apply
to a Heinsen refiling. Consequently, we reverse and remand to the district court for an
independent determination of the motion to exclude as filed in the magistrate court.

BACKGROUND

{2}     Defendant was charged with one count of aggravated DWI in magistrate court.
Prior to trial, Defendant repeatedly requested a witness interview with the arresting
officer, Brad Lunsford, but to no avail. At one point, an interview with Officer Lunsford
was scheduled, but the officer cancelled on the day of the interview.

{3}     Based on the multiple failed attempts to interview Officer Lunsford, Defendant
filed a motion to exclude the officer from testifying at trial. The magistrate court reserved
its ruling on the motion until the day jury selection was set to occur. However, the
magistrate court did enter an order requiring the State to provide the witness interview
with Officer Lunsford by the day of jury selection. When that day came, Defendant still
had not had the opportunity to interview Officer Lunsford. Defendant renewed his motion
to exclude the officer from testifying, and the magistrate court granted it.

{4}     Instead of proceeding to trial, the State filed a nolle prosequi in magistrate court
and refiled Defendant’s case in district court. The refiled complaint indicated that
“[u]nder Rule 6-506[(A)] NMRA, and pursuant to . . . Heinsen . . . the State is exercising
its discretion to have this matter heard in a court of record to remedy an order of
suppression.” In response, Defendant filed a motion in district court to dismiss. Then,
after the district court denied the motion, Defendant filed a motion for reconsideration. In
his motion for reconsideration, Defendant argued that the district court was required,
pursuant to Piñon-Garcia, 2013-NMSC-046, to make a de novo determination of whether
the magistrate court’s exclusion order—entered as a discovery sanction—was correctly
issued based on the merits of the motion as they existed at the time the magistrate court
entered the order. See id. ¶ 1 (concluding that on appeal, “the district court must make an
independent determination of the merits” of a pretrial motion filed in a court not of
record). The district court concluded in its order denying Defendant’s motion for
reconsideration that “[b]ecause this case is not an appeal but is a refiling, the [d]istrict
[c]ourt’s role is not to pass upon the merits of the lower court’s decision but to determine
whether the motion, raised and filed in [d]istrict [c]ourt, is meritorious now.” The district
court then denied the motion because Defendant had evidently interviewed Officer
Lunsford following the refiling in district court. Defendant subsequently entered a
conditional plea agreement in which he pled no contest to a lesser DWI charge and
reserved the right to appeal the district court’s denial of his motion to reconsider.

DISCUSSION



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{5}      Defendant argues that the district court erred by failing to consider the events as
they unfolded in magistrate court in making its decision on his motion for
reconsideration, as required by Piñon-Garcia. See id. ¶ 21 (holding that “the district court
should have made an independent determination regarding the validity of the [lower]
court’s order of dismissal based on the record on appeal and the arguments of counsel at
the district court level”). For its part, the district court predicated its ruling on its
conclusion that Piñon-Garcia, which involved an appeal from an order of dismissal, does
not apply to a case where the state refiles the charges in district court. Defendant,
however, points out that the State refiled the criminal complaint in district court, pursuant
to Heinsen, 2005-NMSC-035, in order to receive review of the magistrate court’s
exclusion ruling. See id. ¶ 1 (recognizing that “the [s]tate may obtain judicial review
of . . . a suppression order by filing a nolle prosequi to dismiss some or all of the charges
in a magistrate court after the suppression order is entered and refiling in the district court
for a trial de novo”). 1 The question for this Court, then, is whether the Piñon-Garcia
requirement for an independent determination of the merits of a pretrial motion filed in
the lower court applies in the context of a district court refiling under Heinsen.

I.     Standard of Review

{6}     “A court’s jurisdiction derives from a statute or constitutional provision.” State v.
Rudy B., 2010-NMSC-045, ¶ 14, 149 N.M. 22, 243 P.3d 726. Likewise, the right to
appeal is a matter of substantive law created by constitution or statute. State v. Armijo,
2016-NMSC-021, ¶ 19, 375 P.3d 415. “We review issues of statutory and constitutional
interpretation de novo.” Id. (internal quotation marks and citation omitted). We also
review de novo the district court’s application of the law to the facts of the case. State v.
Foster, 2003-NMCA-099, ¶ 6, 134 N.M. 224, 75 P.3d 824.

II.    District Court Review of a Potentially Dispositive Discovery Sanction
       Entered in Magistrate Court upon Refiling Pursuant to Heinsen

{7}     Our New Mexico Constitution permits appeals from inferior courts to the district
court. N.M. Const. art. VI, § 27. The relevant provision indicates that “[a]ppeals shall be
allowed in all cases from the final judgments and decisions of the . . . inferior courts to
the district courts, and in all such appeals, trial shall be had de novo unless otherwise
provided by law.” Id.; see NMSA 1978, § 39-3-1 (1955) (“All appeals from inferior
tribunals to the district courts shall be tried anew in said courts on their merits, as if no
trial had been had below, except as otherwise provided by law.”); Foster, 2003-NMCA-



       1
          Although Heinsen involved an order of suppression, both Defendant and the
State treat a Heinsen refiling—a nolle prosequi filed in the magistrate court followed by a
refiling of the charges in the district court—as the appropriate vehicle for the State to
seek review of the magistrate court’s order excluding witness testimony as a discovery
sanction for violation of Rule 6-504(D) NMRA. In the absence of briefing otherwise, we
assume, but do not decide, that this is correct for purposes of resolving this appeal.


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099, ¶ 9 (stating that because magistrate courts are not courts of record, an appeal from a
magistrate court is de novo).

{8}      In light of the constitutional and statutory requirements for a trial de novo in
district court following an appeal from an inferior non-record court, our Supreme Court
in Piñon-Garcia, 2013-NMSC-046, took on the question of how a district court must
treat an appeal of a lower court’s order on a dispositive motion. See id. ¶ 17 (“The limited
question we address in this case is the appropriate review in district court of a municipal
court’s pretrial ruling.”). In Piñon-Garcia, the defendant was charged in municipal court
with three traffic offenses, including DWI. Id. ¶¶ 4-5. On the day of the trial, the arresting
officer did not appear, and the defendant moved to dismiss all charges, which the
municipal court granted. Id. ¶ 5. The City of Farmington appealed the dismissal of the
DWI charge to the district court. Id. The defendant then filed a motion in district court to
dismiss the appeal, arguing that the municipal court’s dismissal should be reviewed on
appeal for an abuse of discretion. Id. The district court determined that it was precluded
from reviewing the municipal court’s order at all and instead held a trial de novo. Id. ¶¶
5-6. The arresting officer appeared at the trial in the district court, and the defendant was
convicted of DWI. Id. ¶ 6.

{9}     Our Supreme Court concluded that the district court was correct in not reviewing
the order of the municipal court for abuse of discretion. See id. ¶ 19 (“The district court
does not consider whether the lower court abused its discretion[.]”). Our Supreme Court
clarified, however, that the district court should have instead made an independent
determination of the merits of the pretrial motion “based on the record on appeal and the
arguments of counsel at the district court level.” Id. ¶ 21; see id. ¶ 19 (holding that the
district court “must consider the merits of the motion without regard to what the
municipal court decided”).

{10} Our Supreme Court reasoned that “[i]f district courts are not permitted to review a
lower court’s grant or denial of potentially dispositive pretrial motions on appeal, the
power of lower courts to grant relief when constitutional safeguards and procedural rules,
such as speedy trial, double jeopardy, or discovery rules, are violated would be
meaningless.” Id. ¶ 2. In other words, a party in an inferior court who is granted a
dispositive order as a remedy for a constitutional or procedural violation “would
effectively be deprived of the safeguards of the United States and New Mexico
Constitutions and our procedural rules if a district court’s de novo review of the lower
court’s ruling are bypassed in favor of a trial de novo on the underlying complaint.” Id.
Our Supreme Court added that this would lead to inferior courts arbitrarily disregarding
“enforcement of procedural rules and constitutional protections” because what the
inferior courts did would not be reviewed. Id. ¶ 13. Ultimately, our Supreme Court
remanded the case and instructed the district court to resolve whether to dismiss the case
because the arresting officer failed to show up to the trial before the municipal court or
whether it would consider alternatives to dismissal, “while balancing the need to
vindicate the authority of the municipal court and protecting the parties’ rights under our
rules and the United States and New Mexico Constitutions.” Id. ¶ 21.




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{11} In the present case, Defendant requested—via his motion to reconsider—that the
district court conduct an independent review of his motion to exclude Officer Lunsford,
as filed in the magistrate court, citing the above-described requirement in Piñon-Garcia.
The district court instead decided the motion for reconsideration anew, based upon the
facts as they existed in the district court, essentially determining that Piñon-Garcia
applies to direct appeals but not to the refiling of charges.

{12} While the district court found this distinction—appeal versus refiling—to be
pivotal, we can see no meaningful difference between either method of obtaining review
of a dispositive motion by the district court. See Heinsen, 2005-NMSC-035, ¶ 1
(recognizing that “the [s]tate may obtain judicial review of . . . a suppression order by
filing a nolle prosequi to dismiss some or all of the charges in a magistrate court after the
suppression order is entered and refiling in the district court for a trial de novo”); see also
City of Santa Fe v. Marquez, 2012-NMSC-031, ¶ 23, 285 P.3d 637 (recognizing a
Heinsen refiling as “the specific procedure by which the state can appeal a suppression
ruling in magistrate court in order to avoid a situation . . . in which the defendant would
be acquitted as the result of the suppression of evidence, thus barring the ability of the
state to appeal”). With respect to our Supreme Court’s recognition that “[i]f district courts
are not permitted to review a lower court’s grant or denial of potentially dispositive
pretrial motions on appeal, the power of lower courts to grant relief when constitutional
safeguards and procedural rules, such as speedy trial, double jeopardy, or discovery rules,
are violated would be meaningless[,]” Piñon-Garcia, 2013-NMSC-046, ¶ 2, we can see
no difference between an appeal from a ruling on a dispositive pretrial motion and a
Heinsen refiling seeking the same type of review.

{13} The State does not argue that its refiling was anything other than an attempt under
Heinsen to have the magistrate court’s exclusion ruling reviewed by the district court. In
fact, the State has continuously asserted, both below and on appeal, that it refiled the
charges in district court in order “to have this matter heard in a court of record to remedy
an order of suppression.” Although not a traditional appeal, the refiling method utilized
by the State is effectively the equivalent of an appeal. See Marquez, 2012-NMSC-031, ¶
23 (“Heinsen . . . reflect[s] [our Supreme] Court’s evident concern that suppression
orders generally should not be immune from appellate review.”).

{14} Because there is no meaningful distinction between an appeal and a Heinsen
refiling when either method is utilized to obtain review of the inferior court’s ruling on a
potentially dispositive pretrial motion, we conclude that the district court should have
conducted an independent review of the pretrial motion to exclude filed in magistrate
court. From our review of the State’s argument on appeal, it does not appear that the State
makes any contention to the contrary. Rather, the State argues that the district court did in
fact conduct a de novo review of the motion. However, as noted earlier, the district court
decided Defendant’s motion for reconsideration based upon the facts as they existed in
the district court, not as they were before the magistrate court. This method of review is
not in line with Piñon-Garcia. See 2013-NMSC-046, ¶ 21 (holding that “the district court
should have made an independent determination regarding the validity of the [lower]
court’s order of dismissal based on the record on appeal and the arguments of counsel at



                                              5
the district court level”); Foster, 2003-NMCA-099, ¶ 19 (stating that a district court does
not “accord deference to the magistrate court’s ruling; instead, the district court makes an
independent judgment based on the record before it” as to whether the magistrate court
properly granted the motion); cf. Piñon-Garcia, 2013-NMSC-046, ¶ 12 (“Simply because
municipal courts are not courts of record does not mean that the entire history of a case in
municipal court is disregarded.”). In fact, we recently held in State v. Vanderdussen,
2018-NMCA-041, 420 P.3d 609—albeit with little analysis on this point—that Piñon-
Garcia applies when the State refiles charges following a mistrial in magistrate court, and
we explained that that the district court “was bound by events that transpired in
magistrate court and therefore was required to base its independent judgment on the
limited record brought before it and the arguments made by counsel in district court.”
Vanderdussen, 2018-NMCA-041, ¶ 2. We conclude that the district court in this case
should have reviewed the magistrate court’s exclusion ruling in the same manner.

{15} Last, we note that both parties have made extensive arguments on appeal as to the
correctness of the magistrate court’s exclusion order. Given our conclusion that the
district court erred in its review of Defendant’s motion to exclude, we need not reach
those arguments. Instead, we reverse the ruling of the district court and remand with an
instruction that the district court determine if it would have excluded Officer Lunsford
based on the events in the magistrate court or if it would consider alternatives to
exclusion. As in Piñon-Garcia, the district court should balance the need to vindicate the
authority of the magistrate court and the protection of the parties’ rights under our rules
and the United States and New Mexico Constitutions. See 2013-NMSC-046, ¶ 21.

CONCLUSION

{16} For these reasons, we reverse and remand to the district court for
proceedings consistent with this opinion.

{17}   IT IS SO ORDERED.

                                                 _________________________________
                                                 DANIEL J. GALLEGOS, Judge

WE CONCUR:

______________________________________
J. MILES HANISEE, Judge

______________________________________
EMIL J. KIEHNE, Judge




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