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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2018-NMSC-004

Filing Date: December 28, 2017

Docket No. S-1-SC-36786

STATE OF NEW MEXICO

Plaintiff-Appellant,

v.

MARIAH FERRY,

Defendant-Appellee.

APPEAL OF DISTRICT COURT ORDER

Reed S. Sheppard, District Judge

Raúl Torrez, District Attorney

James W. Grayson, Assistant District Attorney

Albuquerque, NM

for Appellant

Clark, Jones & Pennington, LLC

Thomas M. Clark

Santa Fe, NM

for Appellee

OPINION

CHÁVEZ, Justice.

{1} The State filed a Motion for Pretrial Detention in this case involving a charge of

first-degree murder, which was denied by the district court judge after an evidentiary

hearing. The State appealed to this Court pursuant to Rule 12-204(C) NMRA and consistent

with State v. Smallwood, 2007-NMSC-005, ¶ 11, 141 N.M. 178, 152 P.3d 821 (holding that

“the legislature intended for [the Supreme Court] to have jurisdiction over interlocutory

appeals in situations where a defendant may possibly be sentenced to life imprisonment or

death”). On page 3 of its Motion, the State contends that the district court judge, relying on
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available at www.nmcourts.gov/Court-Decisions-on-Pretrial-Release-and-DetentionReform.aspx (last visited December 28, 2017)

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State v. Brown, 2014-NMSC-038, 338 P.3d 1276, “apparently determined that the charges

themselves—no matter how serious the crime and how dangerous a manner in which it is

committed—are never sufficient to detain.” The State also contends that the district court

judge abused his discretion and asks us to clarify that a district court judge “should neither

disregard the nature or circumstances of the crime nor consider the charges to the exclusion

of all other factors.”

{2} Discretion is the authority of a district court judge to select among multiple correct

outcomes. Appellate courts analyze a district court judge’s discretionary decisions by first,

without deferring to the district court judge, deciding whether proper legal principles were

correctly applied. If proper legal principles correctly applied only lead to one correct

outcome there is no discretion for the district court judge to exercise. If the district court

judge arrives at the only correct outcome, the district court judge is affirmed; otherwise the

district court judge is reversed. If proper legal principles correctly applied may lead to

multiple correct outcomes, deference is given to the district court judge because if reasonable

minds can differ regarding the outcome, the district court judge should be affirmed. In this

case the dominating issue is whether the district court judge correctly applied proper legal

principles.

{3} Article II, Section 13 provides that “[b]ail may be denied by a court of record

pending trial for a defendant charged with a felony if the prosecuting authority . . . proves

by clear and convincing evidence that no release conditions will reasonably protect the

safety of any other person or the community.” We previously announced that the

prosecuting authority—and defense counsel—may offer evidence in many different forms

during a detention hearing. The litigants may introduce live testimony and proffer

documentary evidence in a form that carries sufficient indicia of reliability, and the Rules

of Evidence do not apply. See Transcript of Bench Ruling by New Mexico Supreme Court

in Torrez v. Whitaker, No. S-1-SC-36379, at 9.1

 The prosecuting authority has the burden

of proving by clear and convincing evidence that (1) the defendant poses a future threat to

others or the community, and (2) no conditions of release will reasonably protect the safety

of another person or the community. See id.

{4} In this case Detective Jodi Gonterman testified concerning her investigation of two

separate alleged crimes involving Defendant, Mariah Ferry. The State also tendered, without

objection, documentary exhibits which included the criminal complaints in two cases filed

against Ferry; a prior court order releasing Defendant on specific supervisory conditions; and

a letter from the mother of one of the victims. In the first case Ferry is alleged to have

participated in the kidnapping and beating of a victim, and in the present case she is alleged

to have participated in the kidnapping, mutilation, and murder of another victim and to have

tampered with evidence. The details of the crimes in this case are adequately set forth in
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The judge’s written Order governs in these proceedings. See Rule 5-409(G) NMRA

(requiring a written order). See also State v. Diaz, 1983-NMSC-090, ¶ 4, 100 N.M. 524, 673

P.2d 501 (“It is well established that an oral ruling by the trial court is not a final judgment,

and that the trial court can change such ruling at any time before the entry of written

judgment.”).

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paragraphs 2 through 7 of the Order Denying State of New Mexico’s Expedited Motion For

Pretrial Detention. The district court judge also specified in paragraph 13 of his Order2

 that

[t]he State argues that no conditions of release can protect the community

based on the nature of the charges. While the Court agrees the nature of the

charges are disturbing, the New Mexico Supreme Court has explained that

the court may not base a pretrial release decision entirely on a single

factor—like the seriousness of the current charges—“to the exclusion of all

other factors.”

(quoting State v. Brown, 2014-NMSC-038, ¶ 51, 338 P.3d 1276).

{5} We understand the State to interpret the district court judge’s ruling to mean that the

seriousness of the nature and circumstances of the underlying crime can never in and of itself

be sufficient to prove a defendant’s future dangerousness. We believe this is one reasonable

interpretation of paragraph 13. However, another reasonable interpretation, as will be

explained in paragraph 8, infra, is that the district court judge did consider the seriousness

of the underlying nature and circumstances of the crime but was persuaded by other evidence

that certain conditions of release could reasonably protect the safety of others and the

community. The fact that there are two reasonable interpretations of the district court

judge’s Order leads us to conclude that a remand is necessary to allow the district court

judge to clarify what he intended by his written Order.

{6} We also conclude that it is necessary to make clear that the nature and circumstances

of a defendant’s conduct in the underlying charged offense(s) may be sufficient, despite

other evidence, to sustain the State’s burden of proving by clear and convincing evidence

that the defendant poses a threat to others or the community. If the State meets this initial

burden of proof the State must still prove by clear and convincing evidence, under Article

II, Section 13, that “no release conditions will reasonably protect the safety of any other

person or the community.” For example, the State may introduce evidence of a defendant’s

defiance of restraining orders; dangerous conduct in violation of a court order; intimidation

tactics; threatening behavior; stalking of witnesses, victims, or victims’ family members; or

inability or refusal to abide by conditions of release in other cases. The potential evidence

of a person’s dangerous inability or refusal to abide by the directives of an authority figure

are so variable that it is difficult to catalog all of the circumstances that might satisfy the

State’s burden of proof.
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Whether Defendant was required to report to her supervising officer if her

codefendants contacted or attempted to contact her directly or through others is not clear in

the Order.

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{7} We emphasize that the litigants and the court must not automatically consider any

one factor to be dispositive in pretrial detention hearings. For this reason district court

judges are required to file written findings of the individualized facts justifying the detention

of the defendant or the denial of the detention motion. Rule 5-409(H)-(I). Of course the

district court judge’s decision will be limited by what evidence the litigants present.

{8} In this case the district court judge verbally announced that he had considered all of

the factors he was required to consider, noting that the crimes charged are very gruesome

and heinous. The judge also stated that the gruesome nature of the crime could not be the

only factor to consider in rendering a detention decision. The judge considered Defendant’s

age and that she had previously been released with supervision without any violations as

evidenced by no one from pretrial services stating otherwise. Finally the judge stated that

he considered the Public Safety Assessment provided to the court. Based on the information

the judge considered, he continued the previous conditions of release imposed on Defendant

weeks earlier by a different district court judge. The conditions included (1) no contact

whatsoever with the codefendants, the victims or their family members, presumably directly

or indirectly;3

 (2) no possession or use of alcohol or prohibited substances; (3) no possession

of firearms, dangerous weapons, knives, or objects that can be considered deadly weapons;

and (4) the requirement that Defendant wear an ankle bracelet at all times while released.

At the request of the State, the district court judge announced there would be zero tolerance

for any violation of the conditions of release no matter how small the violation. The

prosecuting authority did not offer any reasons why the conditions of release were

inadequate to reasonably provide for the safety of a person or the community. Had the

district court judge been as clear in his written Order, as he was in his oral ruling, the written

Order before this court likely would not have been subject to more than one reasonable

interpretation. For this reason we encourage judges to carefully reduce to writing all reliable

information they have considered when deciding to detain or not to detain a defendant.

{9} However, because of the ambiguity in the written Order we remand to the district

court judge to clarify his written Order. If the district court judge interpreted State v. Brown

as precluding the court from finding that reliable evidence of the nature and circumstances

of the crime can never, in and of itself, be sufficient for the State to meet its burden of

proving a defendant’s future dangerousness, the court misinterpreted Brown. We also note

that our Brown opinion was concerned with money bail. The concern for the danger to the

public does not justify setting money bail at any amount because defendants do not forfeit

money bail when they commit new offenses. See Brown, 2014-NMSC-038, ¶ 21. But as we

have explained, the nature and circumstances of a defendant’s conduct in the underlying

charged offense(s) may be sufficient, despite other evidence, to sustain the State’s burden

of proving by clear and convincing evidence that the defendant poses a threat to others or
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the community. If the court so finds, the court must also be persuaded by clear and

convincing evidence that there are no conditions of release that will reasonably protect the

safety of others or the community before the court may enter an order for the pretrial

detention of a defendant.

{10} IT IS SO ORDERED.

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EDWARD L. CHÁVEZ, Justice

WE CONCUR:

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PETRA JIMENEZ MAES, Justice

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CHARLES W. DANIELS, Justice

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BARBARA J. VIGIL, Justice

JUDITH K. NAKAMURA, Chief Justice,

not participating