NMSC: Release Pending Appeal Required When Statutory Conditions Are Met

In State v. Taylor, the New Mexico Supreme Court looked at whether defendants were entitled to release pending their appeal. The defendants had been convicted of child abuse after leaving two children in a hot car. Concluding that the defendants had raised substantial questions that could result in the reversal of their convictions or a new trial, the Court held that the defendants were entitled to be released pending the outcome of their appeal.

Factual Background

Defendants Sandi Taylor and Mary Taylor were each convicted of two counts of child abuse after they failed to remove two children from a hot vehicle. The two operated a daycare, and had driven 12 children in two cars to a park on a hot day. When they returned, they took only ten of the children back inside. Each believed the other had brought in the two children. When they realized their mistake two hours later, one child had died and the other (whose temperature was 108.3 degrees) had suffered serious neurological injuries.

Legal Background

In New Mexico, there is no constitutional right to release pending appeal. However, release pending appeal is available to defendants who meet the requirements of Section 31-11-1(C). To obtain release, a defendant must prove and the district court must find

1. that the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released;
2. that the appeal is not for purpose of delay;
3. that the appeal raises a substantial question of law or fact; and
4. that if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed.

In this case, the court made the first three findings. Thus, the only question was whether the defendants had raised a “substantial question of law or fact” that, if resolved in their favor, was likely to result in reversal or a new trial. The district court found that they had not, and the court of appeals affirmed.

Analysis

On appeal, the question was whether defendants had raised a substantial question that could have resulted in reversal or a new trial. They had raised two issues: that there was not sufficient evidence to show they had acted recklessly, and that the jury instructions were inadequate to allow the jury to arrive at a unanimous decision regarding the conduct alleged to be child abuse.

The court of appeals had previously given some guidance as to when a question is substantial. The question is ” a close question or one that very well could be decided the other way.” It rises above the level of frivolous. It is either novel or fairly doubtful, though novel questions are not necessarily substantial. A court must examine questions on a case-by-case basis to determine whether they are substantial.

The first issue, sufficiency of the evidence, shows the importance of treating the inquiry on a case-by-case basis. Sufficiency of the evidence is a difficult standard to meet. It is frequently raised but seldom successful. Here, however, the state was required to show not that the defendants had negligently left the children in the car, but that they had done so recklessly–that is, with conscious disregard for a substantial risk. Here, there was evidence that each defendant thought the other had removed the children from the vehicle. The Court concluded that the question was a close one that could be resolved either way. And since the question would result in a reversal, the defendants had satisfied all four prongs on this question.

The second issue was only slightly more difficult. The state had advanced a variety of theories as to how the defendants had been reckless: that they had not taken headcounts, had driven the children without permission, had not maintained a high enough child to care provider ratio, and had left the children in the car.

Where the state advances two or more different or inconsistent acts or courses of conduct as differing theories as to how a child’s injuries occurred the jury must make an informed and unanimous decision, guided by separate instructions, as to the culpable act the defendant committed and for which he is being punished.

Here, the jury instruction listed several different types of conduct but separated them with “and/or.” As a result, the defendants were able to argue that there was no way to tell whether each juror had believed it was convicting based on different conduct. The State countered that all of the acts taken together constituted a single theory of recklessness.

Again, the Court believed this was a question that could very well be decided either way. If decided in defendants favor, it would require a new trial. Because both issues where substantial questions that could result in reversal or a new trial, the defendants were entitled to release pending the resolution of their appeal.

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