State v. Zamarripa
| Decision Date | 01 December 2008 |
| Docket Number | No. 30,210.,30,210. |
| Citation | 199 P.3d 846,2009 NMSC 001 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Jesus Roberto ZAMARRIPA, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Law Offices of Nancy L. Simmons, P.C., Nancy L. Simmons, Albuquerque, NM, for Appellant.
Gary K. King, Attorney General, Max Shepherd, Assistant Attorney General, Santa Fe, NM, for Appellee.
{1} This case comes to us on direct appeal from a life sentence pursuant to Rule 12-102(A)(1) NMRA. A jury convicted Jesus Zamarripa (Defendant) of first degree murder (depraved mind), contrary to NMSA 1978, Section 30-2-1(A)(3) (1994); shooting at or from a motor vehicle resulting in great bodily harm, contrary to NMSA 1978, Section 30-3-8(B) (1993); conspiracy to commit shooting at a motor vehicle resulting in great bodily harm, contrary to NMSA 1978, Sections 30-28-2(A) (1979) and 30-3-8(B); and two counts of aggravated assault with a deadly weapon, contrary to NMSA 1978, Sections 30-3-2(A) (1963) and 31-18-16(A) (1993).1 Although Defendant raises several issues on appeal, we reach only one: that he was denied the right to confront a critical witness against him at trial. On this ground, we vacate his convictions and remand for a new trial.
{2} In the early evening hours of April 15, 2004, a skirmish arose between six men riding in two separate cars near Central Avenue in Albuquerque. Defendant was riding in a silver or gold Saturn with Johnny Baca and his son, Ray Baca. Christopher Arena (Victim), Arellano Navarro, and Anthony Rubio were in a black Explorer. Shots were fired at two different intersections: 55th and Churchill and Central and Atrisco. Victim was struck in the head. After the second encounter, the Explorer went to a car wash where it was met by an ambulance to treat Victim. Defendant and the Bacas were stopped by law enforcement within minutes; Ray Baca had a gunshot wound to the hand. Victim subsequently died of his gunshot wound.
{3} The State's theory of the case was that Defendant and the Bacas had pursued the Explorer and shot at its occupants because of a gang rivalry. It alleged that, though Defendant was not a gang-member, the Bacas were members of the Los Padillas gang and the occupants of the Explorer had ties to the TCK gang. The State presented evidence that the hat victim had been wearing identified him as a member of TCK.
{4} To support this theory, the State introduced an out-of-court statement by Ray Baca that he gave to investigators on the night of the shooting. In the statement, Baca said that, while Defendant was not a gang member, both Baca and Defendant recognized that the occupants of the Explorer were part of the TCK gang, a gang that they had "had trouble with." Baca stated that gang signs were thrown between the two cars and then the Explorer began shooting at them. He did not admit to shooting at the Explorer; he maintained that the only shots fired had come from the Explorer. Baca also said that, just prior to the shots being fired, he saw the occupants of the Explorer hanging out of the windows and yelling, though he did not see a gun.
{5} The State used Baca's statement in two ways. First, it used Baca's recognition that he did not see the gun allegedly wielded by the occupants of the Explorer to argue that they did not have a gun and that Defendant was not acting in self-defense, as he claimed. Second, the State used Baca's admission that the shooting was gang related to show motive and as foundation for a gang expert who testified about the rivalry between Los Padillas and TCK and how the altercation may have escalated.
{6} The defense theory was that Victim's injury was "friendly fire" inflicted by one of the other occupants of the Explorer, and that Victim's car fired upon Defendant's car first and that Defendant had only returned fire in self-defense. While neither Defendant nor Johnny Baca testified, Baca's statement supports this claim in that he stated that the Explorer was the first to shoot. Nevertheless, in an apparent attempt to keep the gang evidence away from the jury, defense counsel opposed the admission of Baca's statement.
{7} As for the surviving occupants of the Explorer, they denied that there was "maddogging" (staring), yelling, or gang-sign flashing just prior to the shooting. One of them denied that the shooting was gang-related. They both denied ever firing a gun at the Saturn or having one in their possession.
{8} Although there was evidence that at least two guns were fired—casings from two separate guns were found at the intersections where shots were fired [ ], there was a bullet hole in the Saturn, and witnesses reported that the cars were shooting at each other—only one gun was recovered by the police, and it was found in Defendant's car. Police did not find a gun in the Explorer. It is unclear whether investigators searched for a gun along the path that the Explorer traveled before making contact with the police.
{9} At Defendant's trial, Baca, who was awaiting the outcome of his own appeal for the incident, invoked his Fifth Amendment privilege against self-incrimination to avoid testifying. See U.S. Const. amend. V (). The State moved for an order to compel Baca's testimony based on his statement and grant him use immunity. See Rule 5-116 NMRA (). The use immunity was intended to protect Baca from use of his compelled testimony in any future proceeding against him, see Rule 11-412 NMRA (), and was offered by the State in an apparent attempt to avoid defeating his confrontation rights under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). However, the scope of the immunity only covered Baca's verification of the accuracy of the transcript of his statement; he was not immune from future prosecution based on his answers to substantive questioning on the events described in the statement.
{10} Defense counsel argued numerous times that admitting the transcript of the Baca statement while he had no opportunity to cross-examine Baca would circumscribe Defendant's rights under Crawford. However, over Defendant's objection, the court granted the State leave to give limited use immunity to Baca so that it could compel him to take the stand and verify that the transcript of his statement accurately reflected what he had told the investigator the night of the shooting.
{11} At this point in the trial, there was a lengthy colloquy between the prosecutor, defense counsel, Baca's attorney, and the court about how to proceed with Baca's statement while remaining cautious about Baca's Fifth Amendment privilege, the Crawford issue, and the potential prejudice to Defendant if Baca invoked the privilege on the stand. During the exchange, Baca's attorney tried to clarify the scope of the use immunity. The State proposed several options for the form that its questions to Baca could take so as to avoid inadvertently coaxing him beyond the immunity granted. Baca's attorney expressed concern about the nature of the questioning; specifically, he thought that the State's proposed questions went to the substance of Baca's statement while the order granting use immunity only covered questions about the statement itself.
{12} The court asked whether defense counsel had any input; defense counsel asked whether the written transcript of Baca's statement would be going to the jury. When asked by the court whether he wanted the written transcript to go to the jury, defense counsel answered, Defense counsel said that Baca's concerns would be addressed by putting the written statement itself in "so then we are not going through [the] wording of questions." He continued that "it may . . . be less prejudicial considering the rulings made, to the defense."
{13} The court suggested that both sides stipulate to the statement in an effort to "avoid the risks of expanding the field and questions about what's protected and what's not." The State said that it would stipulate to the statement but then asked whether Defendant, by stipulating to the statement, was waiving his right to cross-examine Baca. Defense counsel replied:
{14} The court then responded to defense counsel:
I recognize you made arguments on the record regarding Crawford, I am not asking you to waive what you have argued, but the fact is that at this point, if the statement goes in, you would be foregoing any further questions regarding that now. Is that—would that work for you?
Defense counsel asked, "Is the Court saying the only way the statement can go in in a written form is if I forego any further cross-examination?" The court replied,
{15} Defense counsel then suggested that Baca could affirm the validity of the transcript and then assert his Fifth Amendment privilege to any other questions. He added that "I don't see where . . . that itself is error or following that manner of proceeding at this point is not going to cause any error." The prosecutor stated that without Defendant waiving Crawford, they could not merely stipulate to the statement. The court agreed. The prosecutor continued that she could have Baca testify to the statement and then let Defendant cross-examine...
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