 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number: _____________

 3 Filing Date: November 18, 2014

 4 NO. 32,942

 5 STATE OF NEW MEXICO,

 6         Plaintiff-Appellant,

 7 v.

 8 JOSEPH MARTINEZ,

 9         Defendant-Appellee.

10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 Judith K. Nakamura, District Judge

12   Gary K. King, Attorney General
13   Santa Fe, NM
14   M. Anne Kelly, Assistant Attorney General
15   Albuquerque, NM

16 for Appellant

17   Bregman & Loman, P.C.
18   Sam Bregman
19   Eric Loman
20   Albuquerque, NM

21 for Appellee
 1                                        OPINION

 2 ZAMORA, Judge.

 3   {1}   The central issues presented in this case are: (1) whether this Court can

 4 consider the State’s new argument against suppression of the alleged victim’s

 5 testimony in light of the procedural posture of the case, and (2) if so, did the district

 6 court err in denying the State’s motion for reconsideration of the suppression order.

 7 I.      BACKGROUND

 8 A.      Factual Background

 9   {2}   Bernalillo County Sheriff’s Deputies were dispatched to Defendant’s home in

10 response to an “open-line” static 911 call. The deputies entered the large rural home

11 based on the 911 call and what appeared to be a disheveled room behind an unlocked

12 sliding glass door. They did not find an active emergency but discovered drugs and

13 drug paraphernalia, as well as videos and photographs that appeared to be child

14 pornography. The deputies called the Bernalillo County Sheriff’s Office to prepare

15 a search warrant.

16   {3}   In the meantime, Defendant arrived home. He was transported from his home

17 to the sheriff’s office in downtown Albuquerque and questioned. Defendant admitted

18 that the drugs in the house were for personal use. He also admitted that he had dozens
 1 of pornographic videos, some of which involved him engaging in sexual acts with an

 2 underage male.

 3   {4}   Based on the observations of the deputies conducting the search and on

 4 Defendant’s statements, a search warrant was issued permitting the seizure of drugs

 5 and drug paraphernalia, as well as videos and photographs containing child

 6 pornography from Defendant’s residence. Pursuant to the warrant, deputies seized

 7 camcorders, videos, photographs, marijuana, and drug paraphernalia.

 8   {5}   A review of the seized evidence revealed ten VHS videos, twelve 8 mm videos,

 9 four mini DVDs, and twenty-nine Polaroid photographs depicting a minor engaging

10 in sexually explicit conduct. Sheriff’s deputies conducted an investigation based on

11 the photographs found in Defendant’s home and Defendant’s statements, and were

12 able to identify the alleged victim (E.L.). E.L. was interviewed and disclosed sexual

13 abuse that had occurred for eleven years.

14   {6}   Defendant was arrested and indicted by a grand jury on forty-four counts of

15 Criminal Sexual Penetration of a Child; and one count each of Sexual Exploitation

16 of a Child; Possession with Intent to Distribute Marijuana; Possession of Drug

17 Paraphernalia; and Possession of Cocaine. Defendant was also indicted by a federal

18 grand jury on two counts of Production of a Visual Depiction of a Minor Engaged in




                                               2
 1 Sexually Explicit Conduct. The state and federal cases against Defendant proceeded

 2 concurrently.

 3 B.      Procedural Background

 4   {7}   After Defendant was indicted in district court, he challenged the legality of the

 5 warrantless search of his home and moved to suppress all evidence obtained as a

 6 result of the search. After a hearing on Defendant’s motion, the district court found

 7 that the search of Defendant’s home was illegal, and ordered suppression of all

 8 physical evidence seized from his home and vehicle, all statements made by

 9 Defendant to law enforcement agents, and the testimony of E.L.

10   {8}   The State appealed the suppression order to this Court. On appeal, the State

11 argued that the warrantless search of Defendant’s home was not illegal. The State also

12 argued that even if the search was illegal, Defendant’s statements and E.L.’s

13 testimony were sufficiently attenuated from the search to purge the taint of the

14 illegality, and should not be suppressed. This Court proposed to affirm both the

15 illegality of the search and the suppression of the evidence.

16   {9}   As to the suppression of E.L.’s testimony, we proposed to affirm because the

17 district court’s findings indicated that E.L. was identified and questioned based on

18 evidence and statements of Defendant that followed the illegal search, and because

19 the State did not explain how it proved to the district court that E.L. would have


                                               3
 1 independently contacted police, nor did the State describe an intervening event or

 2 attenuation. The State did not oppose the proposed result, however it did request that

 3 we clarify whether our affirmance would preclude E.L. from testifying in future

 4 proceedings. In our memorandum opinion affirming the suppression order, we

 5 clarified that we were not deciding what effect, if any, the suppression order would

 6 have on E.L.’s right to testify in any future proceeding. State v. Martinez, No. 31,242,

 7 mem. op. (N.M. Ct. App. Mar. 28, 2012) (non-precedential).

 8   {10}   Meanwhile, Defendant pleaded guilty to the charges in the federal indictment.

 9 In Defendant’s plea agreement with the United States, he admitted that E.L.

10 voluntarily disclosed details of the years of sexual abuse he suffered at the hand of

11 Defendant, and that E.L. was willing to testify about the abuse at trial. The State then

12 moved for reconsideration of the district court’s suppression of E.L.’s testimony. The

13 State argued to the district court that when determining whether evidence obtained

14 as the result of an illegal search is sufficiently attenuated from the illegality as to

15 purge the taint and render the testimony admissible, under United States v. Ceccolini,

16 435 U.S. 268 (1978), the live testimony is analyzed differently than other forms of

17 evidence. To support this new argument, the State offered new authority that was not

18 considered in the first appeal. The district court denied the State’s motion for

19 reconsideration. This appeal followed.


                                              4
 1 II.      DISCUSSION

 2   {11}   On appeal, the State challenges the district court’s order denying its motion to

 3 reconsider suppression of E.L.’s testimony, arguing that the district court erroneously

 4 focused solely on the question of whether E.L. would have independently come

 5 forward to police, prior to the time police searched Defendant’s home. We agree with

 6 the State’s argument.

 7   {12}   Defendant does not respond to the State’s arguments related to the suppression

 8 of E.L.’s testimony. Instead, he argues that under the law of the case doctrine, this

 9 Court’s prior affirmance of the suppression order, which included suppression of

10 E.L.’s testimony, is binding on the remainder of the proceedings in this case, and

11 precludes reconsideration.

12 A.       The Law of the Case Doctrine Does Not Preclude Reconsideration of the
13          Suppression Order

14   {13}   Generally, under the law of the case doctrine, “a decision by an appeals court

15 on an issue of law made in one stage of a lawsuit becomes binding on subsequent

16 [district] courts as well as subsequent appeals courts during the course of that

17 litigation.” State ex rel. King v. UU Bar Ranch Ltd. P’ship, 2009-NMSC-010, ¶ 21,

18 145 N.M. 769, 205 P.3d 816. However, “[a]pplication of this doctrine is a matter of

19 discretion and is not an inflexible rule of jurisdiction.” State v. House, 2001-NMCA-

20 011, ¶ 10, 130 N.M. 418, 25 P.3d 257.

                                                5
 1   {14}   In House, the defendant appealed his DWI-related and reckless driving-related

 2 convictions and the corresponding sentences. Id. ¶¶ 1, 5. Our Supreme Court affirmed

 3 the convictions and remanded for re-sentencing. Id. ¶ 1. The defendant appealed

 4 again to this Court, presenting new arguments related to his sentence. Id. ¶¶ 1, 10.

 5 The state objected, arguing that the law of the case doctrine foreclosed our ability to

 6 hear any argument not made on the defendant’s first appeal. Id. ¶ 10. Finding the

 7 state’s argument unpersuasive, we concluded:

 8          [T]he [law of the case] doctrine traditionally applies only where a matter
 9          has been specifically ruled upon in a prior and final appellate
10          proceeding. . . . Neither this Court, nor our Supreme Court, has passed
11          upon any of the issues specifically presented in this appeal, and while it
12          would have been preferable for [the d]efendant to have brought these
13          claims in his prior appeal, the doctrine of law of the case does not
14          preclude our review.

15 Id. (emphasis added) (citations omitted).

16   {15}   Similarly, it could be argued here that the State could have and should have

17 made its Ceccolini argument the first time suppression was addressed. It is worth

18 noting that “the [law of the case] doctrine leaves considerable discretion to appellate

19 courts to interpret what, precisely, the law of the case is[.]” King, 2009-NMSC-010,

20 ¶ 27. In its motion for reconsideration, the State presented the district court with a

21 new issue not specifically addressed by the previous sitting district court or this Court

22 on Defendant’s motion for suppression. We have considered the merits of the parties’


                                                6
 1 arguments within a motion for reconsideration, even where the motions were

 2 supported by new evidence, new arguments, or new authority. See State v. Gamlen,

 3 2009-NMCA-073, ¶¶ 4-5, 146 N.M. 668, 213 P.3d 818 (permitting the defendant to

 4 make new arguments on a motion to reconsider suppression).

 5   {16}   In the case before us now, the State first advanced its Ceccolini argument in its

 6 motion to reconsider suppression. Defendant did not respond to this argument, rather,

 7 he argued that the district court was bound by this Court’s affirmance in the first

 8 appeal. At the hearing on the State’s motion for reconsideration, the district court

 9 rejected Defendant’s assertion that it was bound by our affirmance. We conclude that

10 it was appropriate for the district court to consider the State’s motion for

11 reconsideration that was based on new argument and new authority.

12 B.       State’s Motion to Reconsider Suppression

13   {17}   On appeal, the State argues that the district court erred in focusing solely on

14 whether E.L. would have independently contacted police. The district court found

15 that, because the State could not prove that E.L. would have independently contacted

16 police, his testimony was not sufficiently attenuated from the illegal search as to make

17 it admissible. The district court also noted that E.L’s willingness to testify was

18 irrelevant. As a result of its erroneous focus, the district court never analyzed the

19 applicability of Ceccolini in this case.


                                                7
 1   {18}   We have not yet deviated from federal precedent as it pertains to the

 2 attenuation of illegally obtained evidence as an exception to the exclusionary rule.

 3 State v. Garcia, 2009-NMSC-046, ¶¶ 14, 23, 147 N.M. 134, 217 P.3d 1032

 4 (following the “fruit of the poisonous tree” and attenuation doctrines set forth in

 5 Wong Sun v. United States, 371 U.S. 471, 488 (1963) and Brown v. Illinois, 422 U.S.

 6 590, 603-04 (1975)); see also State v. Murry, 2014-NMCA-021, ¶ 33, 318 P.3d 180

 7 (citing Wong Sun, 371 U.S. at 488, for general suppression principles). This Court has

 8 not specifically considered whether we will adopt the Ceccolini attenuation analysis

 9 of witness testimony, and we decline to do so here. See City of Las Cruces v. El Paso

10 Elec. Co., 1998-NMSC-006, ¶ 18, 124 N.M. 640, 954 P.2d 72 (“We avoid rendering

11 advisory opinions.”). While we are not deciding the applicability of Ceccolini, we are

12 required to analyze it within the context of the State’s argument in support its Motion

13 for Reconsideration and make the determination of whether there was substantial

14 evidence to support the district court’s decision.

15   {19}   Motions to reconsider suppression in criminal cases involve mixed questions

16 of law and fact. See State v. Hicks, 2013-NMCA-056, ¶ 5, 300 P.3d 1183, cert.

17 denied, 2013-NMCERT-004, 301 P.3d 858; State v. Eric K., 2010-NMCA-040, ¶ 14,

18 148 N.M. 469, 237 P.3d 771. Factual determinations by the district court are reviewed




                                              8
 1 “under a substantial evidence standard and legal questions [are reviewed] de novo.”

 2 Hicks, 2013-NMCA-056, ¶ 5 (internal quotation marks and citation omitted).

 3   {20}   In Ceccolini, the United States Supreme Court included a lengthy discussion

 4 of the uniqueness of live witness testimony compared to inanimate evidentiary

 5 objects, touching directly on the concerns presented:

 6          Witnesses are not like guns or documents which remain hidden from
 7          view until one turns over a sofa or opens a filing cabinet. Witnesses can,
 8          and often do, come forward and offer evidence entirely of their own
 9          volition. And evaluated properly, the degree of free will necessary to
10          dissipate the taint will very likely be found more often in the case of
11          live-witness testimony than other kinds of evidence. The time, place and
12          manner of the initial questioning of the witness may be such that any
13          statements are truly the product of detached reflection and a desire to be
14          cooperative on the part of the witness. And the illegality which led to the
15          discovery of the witness very often will not play any meaningful part in
16          the witness’ willingness to testify.

17 Ceccolini, 435 U.S. at 276-77. The Court went on to state that “[t]he fact that the

18 name of a potential witness is disclosed to police is of no evidentiary significance, per

19 se, since the living witness is an individual human personality whose attributes of

20 will, perception, memory and volition interact to determine what testimony he will

21 give.” Id. at 277.

22   {21}   Given this distinction, the Court held that courts should be cautious to use the

23 exclusionary rule for the testimony of live witnesses, and admonished courts to apply

24 it with circumspection to determine its usefulness in any particular context. The Court

                                                9
 1 was particularly concerned with a situation in which the “exclusion would perpetually

 2 disable a witness [who is not a putative defendant] from testifying about relevant and

 3 material facts, regardless of how unrelated such testimony might be to the purpose of

 4 the originally illegal search or the evidence discovered thereby.” Id. Under such

 5 circumstances, the Court held that “since the cost of excluding live-witness testimony

 6 often will be greater, a closer, more direct link between the illegality and that kind of

 7 testimony is required.” Id. at 278. Thus, the significance of the State’s request that

 8 this Court clarify whether E.L. was precluded from testifying in future proceedings.

 9   {22}   Applying these principles to the facts of that case, the Court held that the

10 witness’s testimony, though causally related to the illegal search, had become

11 sufficiently attenuated because (1) the free will that the witness exhibited made it

12 more likely that she would eventually have come forth on her own, see id. at 276-77,

13 279; (2) the Supreme Court is less willing to exclude live-witness testimony than to

14 exclude inanimate documents or objects, id. at 277; (3) other illegally seized evidence

15 was not used in questioning the witness, id. at 279; (4) “[s]ubstantial periods of time

16 elapsed between the time of the illegal search and the initial contact with the

17 witness,” and “between [the contact with the witness] and the testimony at trial,” id.;

18 and (5) it did not appear that the officer conducted the illegal search with the intent

19 of seeking out evidence, id. at 280.


                                              10
 1   {23}   We agree with the State that the district court’s focus was erroneous. Under

 2 Ceccolini, the likelihood that a testifying witness will be discovered through

 3 independent, legal means is not determinative of attenuation, but rather is a function

 4 of the witness’s willingness to testify. See id. at 276 (“The greater the willingness of

 5 the witness to freely testify, the greater the likelihood that he or she will be

 6 discovered by legal means and, concomitantly, the smaller the incentive to conduct

 7 an illegal search to discover the witness.”). Here, the key considerations in

 8 determining attenuation of E.L.’s testimony are: (1) whether E.L. will willingly testify

 9 against Defendant; and (2) whether the purpose served by excluding E.L.’s testimony

10 outweighs the cost of forever precluding him from testifying against his abuser.

11   {24}   The State had the opportunity to present relevant evidence at the hearing on the

12 motion for reconsideration in support of its argument of the application of Ceccolini

13 and specifically, E.L.’s willingness to testify, but failed to do so. State’s counsel

14 provided only information about E.L.’s alleged willingness to testify included as an

15 admission by Defendant, in Defendant’s federal plea agreement, that E.L. was

16 prepared to willingly testify about the abuse in federal court as detailed in E.L.’s

17 wife’s affidavit. See also State v. Cochran, 1991-NMCA-051, ¶ 8, 112 N.M. 190, 812

18 P.2d 1338 (noting that “argument of counsel is not evidence”).




                                               11
 1   {25}   Defendant’s federal plea agreement was not relevant to show that because E.L.

 2 was willing to testify in the federal proceeding he was therefore willing to testify in

 3 the state proceeding. Substantial evidence is “such relevant evidence as a reasonable

 4 mind might accept as adequate to support a conclusion.” State v. Gonzales, 2010-

 5 NMCA-023, ¶ 4, 147 N.M. 735, 228 P.3d 519 (alteration, internal quotations and

 6 citations omitted). Rule 11-401 NMRA (2011) defines relevant evidence as “evidence

 7 having any tendency to make the existence of any fact that is of consequence to the

 8 determination of the action more probable or less probable.” The State failed to tender

 9 relevant evidence to show E.L. was also willing to testify in the state court

10 proceedings so that the district court could consider even the first of the Ceccolini

11 factors. The State had the opportunity to present E.L.’s testimony, in person or by

12 affidavit, to show his willingness to testify, but chose not to do so. We conclude that

13 the district court appropriately denied the State’s motion for reconsideration.

14   {26}   Based on the foregoing, we affirm the district court’s order denying the State’s

15 motion for reconsideration.

16   {27}   IT IS SO ORDERED.


17                                                  _______________________________
18                                                  M. MONICA ZAMORA, Judge




                                               12
1 WE CONCUR:


2 _________________________________
3 MICHAEL D. BUSTAMANTE, Judge


4 _________________________________
5 MICHAEL E. VIGIL, Judge




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