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Exercise 14

Tutorial on the crimes of stalking and harassment for New Mexico judges

The defendant is arraigned on stalking charges under §30-3A-3. The complaint alleges 20 initial, repeated threatening telephone calls to his ex-girlfriend who lives 75 miles away in a tiny farm town. Aside from his ex-girlfriend, the defendant has no personal or business ties to the town. Thereafter, 30 instances are alleged where the defendant placed his ex-girlfriend under surveillance by parking outside her workplace in the town. Another 50 instances are alleged where the defendant followed his ex-girlfriend as she drove around her town. One of the conditions of release states that the defendant can not travel to his ex-girlfriend's community under any circumstance. Defense counsel argues that this release condition unfairly affects the defendant's freedom to travel and is unreasonable.

How should the judge rule?

A. Agree with defense counsel and remove the travel restriction because it is unreasonable to impose on the defendant.
Answer A is incorrect. Under Rule 6-401(B)(1), one factor the court can consider in conditions of release is the safety of persons and the community, taking into account available information on the nature and circumstances of the offense charged. Thus, the judge's basic goal of enhancing the safety of the victim was proper. However, totally lacking was any information that the defendant had e-mailed the victim even once, much less repeatedly. Given the absence of such information, requiring the defendant to disconnect his computer is not a reasonable method of enhancing the victim's safety and it imposes an undue economic hardship on the defendant. The court could have instead imposed a condition of release requiring simply that the defendant refrain from any contact with the victim, either in-person or through the use of any means of communication. Please select another answer.
B. Disagree with defense counsel and conclude the travel restriction is reasonable based on allegations indicating an increase in the frequency of the stalking and an escalation in the time spent and methods used by the defendant.
Answer B is correct! As provided in Rule 6-401(B)(1), the court took into account the information available to it about the "nature and circumstances" of the alleged stalking. On its face, that information revealed a possible escalation of stalking conduct from telephoning at first, to traveling 75 miles to conduct surveillance and then traveling that distance 50 additional times to follow the victim. Given the escalation, the travel restriction to that one location was reasonable to help assure the ex-girlfriend's safety. See Rule 6-401(C)(2)(d) (specific restrictions on travel as condition of release).
C. Disagree with defense counsel, maintain the travel restriction and impose an additional one requiring the defendant not to operate his motor vehicle at all, as a means of better ensuring that the defendant adheres to the travel restriction.
Answer C is incorrect. Rule 6-401(C)(2)(d) does allow for specified restrictions on travel. However, that Rule also requires "the least restrictive of..." release conditions to reasonably assure the defendant's presence in court and the safety of others. Removing entirely the ability of the defendant to operate his motor vehicle is not "the least restrictive" condition when compared to ordering the defendant not to travel to his ex-girlfriend's town under any circumstances. Please select another answer.