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                                                                    New Mexico Compilation
                                                                  Commission, Santa Fe, NM
                                                                 '00'05- 13:45:26 2018.02.09
         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2018-NMSC-006

Filing Date: January 11, 2018

Docket No. S-1-SC-36363

STATE OF NEW MEXICO,

        Plaintiff-Appellee,

v.

ELEXUS GROVES,

        Defendant-Appellant.

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

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

for Appellant

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

for Appellee

                                          OPINION

DANIELS, Justice.

{1}     Defendant Elexus Groves has been indicted on two counts of first-degree murder and
other serious felony offenses. In this interlocutory appeal she challenges a district court order
of pretrial detention that was based on two independent and alternative detention grounds
contained in Article II, Section 13 of the New Mexico Constitution.

{2}     The first ground was that Defendant was detainable under the provision that has been
part of our Constitution since we became a state, providing an exception to the general right

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to pretrial release for defendants charged with capital offenses.

{3}     The second ground was based on the new detention authority added by New Mexico
voters in the November 2016 general election, allowing denial of pretrial release of a felony
defendant if the prosecuting authority requests a hearing and proves by clear and convincing
evidence that no release conditions will reasonably protect the safety of any other person or
the community.

{4}      We hold that the district court’s detention order was lawfully based on the new
constitutional authority for pretrial detention of dangerous defendants, and we affirm it on
that ground. As a result, there is no need to address in this opinion the issues Defendant
raises relating to the alternative ground for the district court’s action based on the old capital-
offense exception, a matter that we have addressed separately in State v. Ameer, S-1-SC-
36395. See N.M. Sup. Ct. order (May 8, 2017).

I.      FACTUAL AND PROCEDURAL BACKGROUND

{5}      Shortly after 6 a.m. on Friday, January 18, 2017, a man and a woman stole a van in
Albuquerque. The two attempted to flee pursuing police officers, driving recklessly at
extremely high speeds through residential city streets. Defendant, shown to be the apparent
driver of the stolen van by physical evidence and her postarrest statements to police, crashed
it into another car at an intersection, killing a teenage girl, fatally injuring the girl’s mother,
and breaking the leg of the girl’s three-year-old brother. As logged by the van’s GPS data,
a moment before the crash the van was traveling at seventy-eight miles per hour in a thirty-
five-mile-per-hour residential zone, and on impact it was traveling at sixty-eight miles per
hour.

{6}      After the fatal crash, the offenders jumped out of the stolen van and continued their
flight from the police. They ran through adjacent neighborhoods, climbing backyard fences
and attempting to distract residents so they could steal another vehicle. After they succeeded
in stealing another car, they escaped the pursuing officers but left behind a number of clues
that resulted in Defendant’s identification and her arrest two days later.

{7}     Among the clues, officers found a cell phone in the back yard of one witness who had
called police to report that two unknown people had jumped over his fence. Investigation of
that cell phone revealed a Facebook account belonging to coparticipant Paul Garcia and a
call record showing contact between Garcia and Defendant.

{8}    Near the place where the second vehicle had been stolen, officers discovered a jacket
containing a letter addressed to Defendant from an attorney offering to represent her in
connection with her pending criminal charges.

{9}     Officers obtained security video footage from a business along the offenders’ escape
route that recorded two persons appearing to be Defendant and Garcia crossing a parking lot.

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In the video, the person identified as Garcia was walking with only one shoe, which
appeared to match a shoe found at the wrecked van.

{10} Following her arrest, Defendant initially appeared in metropolitan court, which set
release conditions including the requirement that she post a $100,000 secured bond. The
State filed a motion in district court to deny Defendant’s release pending trial under the new
provisions of Article II, Section 13 of the New Mexico Constitution, arguing that no
conditions of release a court could impose would protect the safety of others. The case was
promptly transferred to the district court, which has exclusive pretrial detention authority as
a statutory court of record. See Torrez v. Whitaker, 2018-NMSC-___, ¶¶ 71, 75, ___ P.3d,
___ (S-1-SC-36379, Jan. 11, 2018).

{11} After a hearing at which no witnesses personally testified for either side, the district
court denied the State’s detention motion, continued the $100,000 secured bond, and
imposed additional conditions of release. Because that order has not been appealed, we need
not address it further.

{12} A grand jury then indicted Defendant on multiple charges related to the deadly
January 18 chase, including two counts of first-degree felony murder, carrying potential
sentences of life imprisonment. NMSA 1978, § 30-2-1(A)(2) (1994) (statutorily classifying
felony murder as a “capital felony”); see also NMSA 1978, § 31-18-14 (2009) (providing
that a person convicted of a “capital felony” shall be sentenced to life imprisonment).

{13} The day after indictment, the State filed a second detention motion, based exclusively
on the new authority in Article II, Section 13 allowing denial of pretrial release when no
release conditions will reasonably protect the safety of others. To support its request, the new
motion proffered details of the newly-indicted offenses and a pattern of past criminal
conduct, including significantly a pending prosecution in Sandoval County. That case, based
on occurrences just a few weeks earlier, also involved a stolen vehicle and a high-speed
attempted escape from police by Defendant and coparticipant Paul Garcia that ended with
their crashing the stolen vehicle. The motion recited that in the Sandoval County case
Defendant was on pretrial release conditions that she already had violated by a failure to
appear by the time she committed the offenses in this case.

{14} That postindictment detention motion first came before a temporary arraignment
judge, who heard presentations of counsel and a pretrial services officer’s risk-assessment-
instrument-based determination that she could not “make a [release] recommendation that
would reasonably ensure public safety.” The arraignment judge entered an order for
detention relying on the “nature and circumstances of the offense charged,” Defendant’s
“past conduct, history relating to drug or alcohol abuse, criminal history and record
concerning appearance at court proceedings,” and “the nature and seriousness of the danger
to any person or the community.”

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

                                               3
estoppel principles precluded the arraignment judge from ordering detention after a previous
judge had denied detention and that “no evidence was presented to [the arraignment judge]
upon which she could base her ruling that pretrial detention [w]as appropriate.”

{16} At the hearing on Defendant’s motion to review the detention order, the district judge
who was assigned to preside over postindictment proceedings conducted an evidentiary
hearing at which he considered arguments and factual representations of counsel, the
contents of a number of court files reflecting Defendant’s criminal history, the risk
assessment provided by pretrial services, and the transcript of the prior hearing at which
detention was ordered. No live witness testimony was presented by either party.

{17} In addition to the factual circumstances underlying the current prosecution that were
recounted in documents in the court files and described earlier in this opinion, the district
court expressed concern about Defendant’s conduct in the recent Sandoval County case. The
court’s concerns included Defendant’s attempt to avoid arrest in that case by participating
in a reckless high-speed chase that ended only after crashing the stolen getaway vehicle. The
court also noted that the release conditions ordered in the Sandoval County case before
Defendant committed similar unlawful conduct in this case included the requirement that she
not violate any state laws. The court also pointed out that even before committing the crimes
in this case Defendant failed to comply with her release conditions in that pending case by
failing to appear for a scheduled preliminary hearing, causing issuance of a warrant for her
arrest that had not been served at the time of the events in this case.

{18} At the conclusion of the hearing the district court denied Defendant’s motion to
review the prior detention order and ordered Defendant to be detained pending trial. One of
the stated legal grounds for the detention order, a theory that had not been proposed by the
State but was raised sua sponte by the district court, was that the district judge believed
Defendant was charged with a “capital offense” where “‘the proof is evident or the
presumption great.’”

{19} As an alternative ground for detention, the court agreed with the State and concluded
that Defendant’s history of dangerous conduct and failure to abide by requirements of
previous release orders established that “no conditions of release [would] reasonably protect
the safety of any other person or the community from Defendant.” The court also rejected
Defendant’s collateral estoppel argument, both because the interlocutory metropolitan court
order of release or detention is not a final determination of an issue of pretrial detention and
because the intervening grand jury indictment represented a significant change in
circumstances.

{20} Defendant appealed to this Court to review the final detention order, arguing (1) that
she did not have fair notice that the capital-offense theory was going to be a basis of
detention and therefore did not prepare to defend against it; (2) that the evidence at the
hearing was insufficient to establish that the proof was evident or the presumption great
under the capital-offense theory; and (3) the evidence, which did not include live witness

                                               4
testimony, was insufficient to justify detention under the new detention-for-dangerousness
constitutional grounds for denial of pretrial release.

{21} We scheduled oral argument and at its conclusion announced our affirmance of the
detention order on the detention-for-dangerousness ground, without the need to reach other
issues, and advised that we would follow up with this published opinion. See New Mexico
Supreme Court order, April 12, 2017 (affirming the district court).

II.    DISCUSSION

{22} Article VI, Section 2 of the New Mexico Constitution assigns this Court exclusive
jurisdiction over appeals from final district court judgments “imposing a sentence of death
or life imprisonment.” This Court correspondingly has exclusive jurisdiction over
interlocutory appeals, including appeals from interlocutory release and detention orders in
cases like this one in which a defendant is charged with first-degree murder, an offense that
currently carries a possible life sentence. State v. Brown, 2014-NMSC-038, ¶ 10, 338 P.3d
1276 (citing State v. Smallwood, 2007-NMSC-005, ¶¶ 6-11, 141 N.M. 178, 152 P.3d 821 in
holding that the Supreme Court has exclusive jurisdiction over appeals of release conditions
in first-degree murder prosecutions).

{23} NMSA 1978, Section 39-3-3(A)(2) (1972) permits an appeal from an “order denying
relief on a petition to review conditions of release,” and Article II, Section 13 of the New
Mexico Constitution requires that “[a]n appeal from an order denying bail shall be given
preference over all other matters.”

{24} Rule 12-204(D)(2)(b) NMRA, governing procedures in appeals from bail orders,
provides that a district court decision shall be set aside only if it is shown that the decision
(1) “is arbitrary, capricious, or reflects an abuse of discretion,” (2) “is not supported by
substantial evidence,” or (3) “is otherwise not in accordance with law.”

{25} “An abuse of discretion occurs when the court exceeds the bounds of reason, all the
circumstances before it being considered.” Brown, 2014-NMSC-038, ¶ 43 (internal quotation
marks and citation omitted). Similarly, a decision “is arbitrary and capricious if it is
unreasonable or without a rational basis, when viewed in light of the whole record.” N.M.
Att’y Gen. v. N.M. Pub. Reg. Comm’n, 2013-NMSC-042, ¶ 10, 309 P.3d 89 (internal
quotation marks and citation omitted). “Substantial evidence is such relevant evidence that
a reasonable mind would find adequate to support a conclusion.” State ex rel. King v. B&B
Inv. Grp., Inc., 2014-NMSC-024, ¶ 12, 329 P.3d 658 (internal quotation marks and citation
omitted).

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

{27} The proceedings below occurred shortly after adoption of the constitutional
amendment creating new authority for detention of defendants who are found to be too

                                               5
dangerous to be released pending trial and before promulgation of our procedural rules
governing application of the broad constitutional language, in particular new Rule 5-409
NMRA, governing detention proceedings in district court.

{28} In Torrez, 2018-NMSC-___, we traced the history and purpose of the detention-for-
dangerousness constitutional amendment and provided guidance for courts and litigants in
conducting detention hearings. This is the first opinion in which we apply Torrez’s guidance
in an appellate review of a detention ruling.

{29} As we explained in Torrez, a detention hearing requires a judge to make three
categories of determinations in deciding whether pretrial detention should be ordered: (1)
“which information in any form carries sufficient indicia of reliability to be worthy of
consideration,” (2) “the extent to which that information would indicate that a defendant may
be likely to pose a threat to the safety of others if released pending trial,” and (3) “whether
any potential pretrial release conditions ‘will reasonably protect the safety’ of others, as
required by the new constitutional standard in Article II, Section 13.” Torrez, 2018-NMSC-
___, ¶¶ 99-102. Our appellate role in determining whether substantial evidence supported
the district court decision and whether the judge abused his discretion or acted arbitrarily or
capriciously necessarily must also take those analyses into consideration.

{30} Looking at the first of those factors, we conclude that the district court was entitled
to take into account the factually undisputed information from court and law enforcement
files that has been summarized in this opinion. See id. ¶ 110 (holding that live witnesses may
but are not required to be called at detention hearings and that judges “may consider all
reasonably reliable information, without regard to strictures of the formal rules of
evidence”); see also Rule 5-401(C) NMRA (summarizing information a court may consider
in determining release conditions that might “reasonably ensure the appearance of the
defendant as required and the safety of any other person and the community”).

{31} There is nothing in the record to raise serious doubts about the credibility of the
police officers who conducted the investigations and prepared the resulting sworn and
unsworn reports or of the independent victims and other witnesses who reported their own
interlocking and cross-corroborating observations of Defendant’s activities to the police. In
its totality the factual information about Defendant’s current and previous offenses that was
relied on by the district court carried strong indicia of reliability in establishing the historical
facts summarized earlier in this opinion.

{32} The next required step is to consider how that information bears on an assessment
of “the nature and seriousness of the danger to any person or the community that would be
posed by the defendant’s release,” as required by Rule 5-401(C)(4) in determining
appropriate release conditions. The information in the record strongly supports the
conclusion that Defendant has uncontrolled propensities to persist in the commission of
unlawful and gravely dangerous conduct, as exemplified by three vehicle thefts in just a
matter of a few weeks, each followed by recklessly dangerous flights from authorities on the

                                                 6
public streets. See Rule 5-401(C)(3)(a) (allowing the court’s assessment to take into account
“the history and characteristics of the defendant, including . . . the defendant’s character,
physical and mental condition, . . . past conduct, . . . [and] criminal history”). The undisputed
facts include that two of the vehicle thefts and high-speed flights ended in vehicle crashes,
the second causing the deaths of two people and the serious injury of another, just minutes
before Defendant fled again with her partner, stole a third vehicle, and engaged in yet
another motorized flight from authorities.

{33} We emphasize that the relevant consideration for a court is not the category or
punishability of the charged crime. See Torrez, 2018-NMSC-___, ¶ 101. In a detention
hearing the court’s focused concern is not to impose punishment for past conduct but instead
to assess a defendant’s likely future conduct. See id. (explaining that “the particular facts and
circumstances in currently charged cases, as well as a defendant’s prior conduct, charged or
uncharged, can be helpful in making reasoned predictions of future dangerousness”).

{34} In this case, Defendant’s past conduct created a strong basis for reasoned inferences
of her likely future conduct. Defendant had not simply committed an isolated act of theft or
of reckless driving. In the record before the district court in this case, the totality of
Defendant’s conduct fully justifies the district court’s determination that she presented an
unacceptable risk of continued endangerment of the public in the same manner if released,
a determination well within the bounds of reason and a proper exercise of judicial discretion.
See Brown, 2014-NMSC-038, ¶ 13.

{35} As to the third part of the detention analysis, several facts supported the district
court’s determination by clear and convincing evidence that no conditions of pretrial release
the court could impose under Rule 5-401 would reasonably protect the safety of any other
person or the community.

{36} The clear and convincing evidence standard is a recognized term of art in our
jurisprudence. It refers to “evidence that instantly tilt[s] the scales in the affirmative when
weighed against the evidence in opposition and the fact finder’s mind is left with an abiding
conviction that the evidence is true.” In re Locatelli, 2007-NMSC-029, ¶ 7, 141 N.M. 755,
161 P.3d 252 (alteration in original) (internal quotation marks and citation omitted).

{37} The determination whether available release conditions would reasonably protect
others does not require scientific accuracy any more than any other prediction of future
human behavior. The key word is reasonably, which requires the exercise of reasoned
judgment. As we noted in Brown, we cannot demand that human beings in judicial robes be
omniscient. See 2014-NMSC-038, ¶ 54, (recognizing that “no judge can predict the future
with certainty or guarantee that a person will appear in court or refrain from committing
future crimes”). Instead, we require that judges consider available information, exercise
reason, and make thoughtful judgments.

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

                                               7
release conditions a court could impose would protect against Defendant’s likely future
dangerous conduct. Apart from her record of continued criminal activity and dangerous
conduct while on previous conditions of release, Defendant had demonstrated a pattern of
refusal to comply with directions of the courts and of police. When Defendant committed
the offenses in this case, she was on supervised release in two other cases. Defendant’s
conditions of prior release required, in part, that she not violate any state laws and that she
appear at scheduled court proceedings, yet she refused to abide by those conditions. As the
State pointed out below, even if the court were to impose conditions as extreme as GPS
monitoring, she could still steal another vehicle and resist arrest by engaging in another
dangerous or, as in this case, deadly escape from police.

{39} We conclude that there was substantial evidence in the record to support the district
court’s detention decision and that the court neither abused its discretion nor acted arbitrarily
or capriciously in finding by clear and convincing evidence that no conditions of release that
could be ordered for Defendant would reasonably protect the safety of others.

{40} An additional item of information that the district court took into account, although
unnecessary to our finding of substantial evidence on this record, was the high-
dangerousness score Defendant received on the Arnold Public Safety Assessment (PSA), a
validated risk assessment that has been approved by this Court in the Second Judicial District
as a pilot project. See Rule 5-401(C) (authorizing consideration of “any available results of
a pretrial risk assessment instrument approved by the Supreme Court for use in the
jurisdiction” in making release decisions). The PSA is a nationally recognized scientifically
validated risk assessment instrument that courts in an increasing number of jurisdictions use
as an aid, though never as the only factor, in making detention and release decisions. See,
e.g., State v. Robinson, 160 A.3d 1, 11 (2017) (describing New Jersey’s statutorily-required
use of the PSA and emphasizing that “judges consider the PSA but make the ultimate
decision on release after reviewing other relevant information as well”); Arnold Foundation,
The Front End of the Criminal Justice System, Public Safety Assessment, available at
http://www.arnoldfoundation.org/initiative/criminal-justice/crime
-prevention/public-safety-assessment/ (last visited January 6, 2018) (describing the purpose
and operation of the PSA and naming some of the thirty-eight United States jurisdictions that
have implemented it).

{41} As a result of the 2016 constitutional reform, neither our courts nor our communities
are helpless to prevent release of provably dangerous offenders, as was the reality under the
old money-based system. Instead, our courts are authorized now to make evidence-based
pretrial release and detention decisions that better protect public safety and provide for a
more fair pretrial justice system.

{42} In line with those reforms, this Court has also amended Rule 5-403 NMRA, Rule 6-
403 NMRA, Rule 7-403 NMRA, and Rule 8-403 NMRA to clearly authorize all criminal
courts to amend a defendant’s release conditions or revoke pretrial release entirely for
commission of new crimes or other violations of release orders, without waiting for a

                                               8
noncompliant defendant to endanger or victimize someone else.

{43} This case is a good example of the wisdom of those constitutional and court-rule
changes. There is no reason in law or logic that should compel our judges to do the same
things over and over and expect different results. In this case, there is no reason for a court
to believe that court-ordered release conditions would do any better in controlling
Defendant’s repeated dangerous conduct than release conditions have done in the past. In
fact, Defendant has demonstrated by her own conduct that the opposite result is likely.

{44} We agree with the United States Supreme Court that under our American system of
justice “liberty is the norm, and detention prior to trial or without trial is the carefully limited
exception.” United States v. Salerno, 481 U.S. 739, 755 (1987) (upholding the federal
detention-for-dangerousness statute). But in this case and on this record the district court
justifiably determined that this defendant has earned a place in that carefully limited
exception, not as punishment for her past acts but to protect others from her predictable
future dangerousness.

III.    CONCLUSION

{45} As we stated in our bench ruling following oral argument and in a contemporaneous
written order, we affirm the order of the district court denying pretrial release to Defendant
under the new authority in Article II, Section 13 of the New Mexico Constitution permitting
courts of record to deny pretrial release by clear and convincing evidence that no release
conditions will reasonably protect the safety of any other person or the community.

{46}    IT IS SO ORDERED.

                                                 ____________________________________
                                                 CHARLES W. DANIELS, Justice

WE CONCUR:

____________________________________
JUDITH K. NAKAMURA, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
BARBARA J. VIGIL, Justice


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