After affirmance and on remand of a granted motion to suppress the state raised a Ceccolini argument that live witness testimony is harder to attenuate [see Treatise § 10.12] via a motion to reconsider. The defense argued law of the case without addressing the merits. The court of appeals rejects law of the case here because it was discretionary and not a hard and fast rule, and the court comes close to saying the state could potentially prevail. Nevertheless, the state loses on the merits because it didn’t put the witness on to testify at the motion hearing that he would testify at trial. State v. Martinez, 2014 N.M. App. LEXIS 110 (November 18, 2014):
We have not yet deviated from federal precedent as it pertains to the attenuation of illegally obtained evidence as an exception to the exclusionary rule. State v. Garcia, 2009-NMSC-046, ¶¶ 14, 23, 147 N.M. 134, 217 P.3d 1032 (following the “fruit of the poisonous tree” and attenuation doctrines set forth in Wong Sun v. United States, 371 U.S. 471, 488 (1963) and Brown v. Illinois, 422 U.S. 590, 603-04 (1975)); see also State v. Murry, 2014-NMCA-021, ¶ 33, 318 P.3d 180 (citing Wong Sun, 371 U.S. at 488, for general suppression principles). This Court has not specifically considered whether we will adopt the Ceccolini attenuation analysis of witness testimony, and we decline to do so here. See City of Las Cruces v. El Paso Elec. Co., 1998-NMSC-006, ¶ 18, 124 N.M. 640, 954 P.2d 72 (“We avoid rendering advisory opinions.”). While we are not deciding the applicability of Ceccolini, we are required to analyze it within the context of the State’s argument in support its Motion for Reconsideration and make the determination of whether there was substantial evidence to support the district court’s decision.
Motions to reconsider suppression in criminal cases involve mixed questions of law and fact. See State v. Hicks, 2013-NMCA-056, ¶ 5, 300 P.3d 1183, cert. denied, 2013-NMCERT-004, 301 P.3d 858; State v. Eric K., 2010-NMCA-040, ¶ 14, 148 N.M. 469, 237 P.3d 771. Factual determinations by the district court are reviewed “under a substantial evidence standard and legal questions [are reviewed] de novo.” Hicks, 2013-NMCA-056, ¶ 5 (internal quotation marks and citation omitted).
In Ceccolini, the United States Supreme Court included a lengthy discussion of the uniqueness of live witness testimony compared to inanimate evidentiary objects, touching directly on the concerns presented:
Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet. Witnesses can, and often do, come forward and offer evidence entirely of their own volition. And evaluated properly, the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live-witness testimony than other kinds of evidence. The time, place and manner of the initial questioning of the witness may be such that any statements are truly the product of detached reflection and a desire to be cooperative on the part of the witness. And the illegality which led to the discovery of the witness very often will not play any meaningful part in the witness’ willingness to testify.
Ceccolini, 435 U.S. at 276-77. The Court went on to state that “[t]he fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, since the living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give.” Id. at 277.
Given this distinction, the Court held that courts should be cautious to use the exclusionary rule for the testimony of live witnesses, and admonished courts to apply it with circumspection to determine its usefulness in any particular context. The Court was particularly concerned with a situation in which the “exclusion would perpetually disable a witness [who is not a putative defendant] from testifying about relevant and material facts, regardless of how unrelated such testimony might be to the purpose of the originally illegal search or the evidence discovered thereby.” Id. Under such circumstances, the Court held that “since the cost of excluding live-witness testimony often will be greater, a closer, more direct link between the illegality and that kind of testimony is required.” Id. at 278. Thus, the significance of the State’s request that this Court clarify whether E.L. was precluded from testifying in future proceedings.
Applying these principles to the facts of that case, the Court held that the witness’s testimony, though causally related to the illegal search, had become sufficiently attenuated because (1) the free will that the witness exhibited made it more likely that she would eventually have come forth on her own, see id. at 276-77, 279; (2) the Supreme Court is less willing to exclude live-witness testimony than to exclude inanimate documents or objects, id. at 277; (3) other illegally seized evidence was not used in questioning the witness, id. at 279; (4) “[s]ubstantial periods of time elapsed between the time of the illegal search and the initial contact with the witness,” and “between [the contact with the witness] and the testimony at trial,” id.; and (5) it did not appear that the officer conducted the illegal search with the intent of seeking out evidence, id. at 280.
We agree with the State that the district court’s focus was erroneous. Under Ceccolini, the likelihood that a testifying witness will be discovered through independent, legal means is not determinative of attenuation, but rather is a function of the witness’s willingness to testify. See id. at 276 (“The greater the willingness of the witness to freely testify, the greater the likelihood that he or she will be discovered by legal means and, concomitantly, the smaller the incentive to conduct an illegal search to discover the witness.”). Here, the key considerations in determining attenuation of E.L.’s testimony are: (1) whether E.L. will willingly testify against Defendant; and (2) whether the purpose served by excluding E.L.’s testimony outweighs the cost of forever precluding him from testifying against his abuser.
The State had the opportunity to present relevant evidence at the hearing on the motion for reconsideration in support of its argument of the application of Ceccolini and specifically, E.L.’s willingness to testify, but failed to do so. State’s counsel provided only information about E.L.’s alleged willingness to testify included as an admission by Defendant, in Defendant’s federal plea agreement, that E.L. was prepared to willingly testify about the abuse in federal court as detailed in E.L.’s wife’s affidavit. See also State v. Cochran, 1991-NMCA-051, ¶ 8, 112 N.M. 190, 812 P.2d 1338 (noting that “argument of counsel is not evidence”).
Defendant’s federal plea agreement was not relevant to show that because E.L. was willing to testify in the federal proceeding he was therefore willing to testify in the state proceeding. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Gonzales, 2010-NMCA-023, ¶ 4, 147 N.M. 735, 228 P.3d 519 (alteration, internal quotations and citations omitted). Rule 11-401 NMRA (2011) defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable.” The State failed to tender relevant evidence to show E.L. was also willing to testify in the state court proceedings so that the district court could consider even the first of the Ceccolini factors. The State had the opportunity to present E.L.’s testimony, in person or by affidavit, to show his willingness to testify, but chose not to do so. We conclude that the district court appropriately denied the State’s motion for reconsideration.
Based on the foregoing, we affirm the district court’s order denying the State’s motion for reconsideration.
