State v. Lopez

• Decision Date: 02 August 2011
• Docket Number: No. 30,257.,30,257.
• Citation: 258 P.3d 458,150 N.M. 179,2011 -NMSC- 035
• Parties: STATE of New Mexico, Plaintiff–Appellee,v.Ramon LOPEZ, Defendant–Appellant.
• Court: New Mexico Supreme Court

150 N.M. 179

258 P.3d 458

2011 -NMSC- 035

STATE of New Mexico, Plaintiff–Appellee,

v.Ramon LOPEZ, Defendant–Appellant.

No. 30,257.

Supreme Court of New Mexico.

Aug. 2, 2011.

Hugh W. Dangler, Chief Public Defender Nina Lalevic, Assistant Appellate Defender Santa Fe, NM, for Appellant.Gary K. King, Attorney General, Andrea Sassa, Assistant Attorney General Santa Fe, NM, for Appellee.

OPINION

SERNA, Justice.

{1} Defendant Ramon Lopez was convicted by a jury of multiple crimes, including first-degree felony murder, contrary to NMSA 1978, Section 30–2–1(A)(2) (1994), with first-degree criminal sexual penetration (CSP), contrary to NMSA 1978, Section 30–9–11(C)(2) (1995) (amended 2009), as the underlying felony. Defendant invokes this Court's appellate jurisdiction over sentences for life imprisonment, contained in Article VI, Section 2 of the New Mexico Constitution and Rule 12–102(A)(1) NMRA. We address two of the issues Defendant has raised on appeal: whether Defendant's right to confront witnesses who testified against him were violated by the admission of the preliminary hearing testimony of an unavailable witness, and whether the district court erred in allowing the State to impeach its own witness with otherwise inadmissible hearsay. We conclude that the district court committed reversible error by allowing the hearsay to be admitted under the auspices of the State's impeachment of the preliminary hearing testimony of the unavailable witness.

{2} Crystal Calderella (Victim) last was seen alive the night of April 12, 2001, with Defendant, Greg Romero, and others who were consuming drugs and alcohol at Victim's home in Socorro, New Mexico. On April 15, 2001, Victim's body was discovered in her home, her clothes partially removed. There were bruises and contusions on Victim's neck and lower legs, and blood on the back of Victim's head. Semen, later shown to be Defendant's, was found in Victim's vagina. Defendant was charged with Victim's murder after being arrested on an unrelated charge.

{3} At Defendant's preliminary hearing, Romero testified under oath about the events that occurred during the evening of Victim's death. Before trial, the State informed the district court that it was unable to locate Romero, who had absconded from probation in California, and explained the efforts that had been undertaken to locate him. The district court permitted the State to introduce Romero's preliminary hearing testimony via tape under the hearsay exception for unavailable witnesses contained in Rule 11–804(A)(5) and (B)(1) NMRA. Defendant argues that the admission of Romero's preliminary hearing testimony violated the Confrontation Clauses contained in the Sixth Amendment to the United States Constitution and Article II, Section 14 of the New Mexico Constitution.

{4} “We first determine whether the preliminary hearing testimony was properly admitted under the Rules of Evidence.” State v. Henderson, 2006–NMCA–059, ¶ 8, 139 N.M. 595, 136 P.3d 1005. Only if the preliminary hearing testimony was properly admitted do we address the Confrontation Clause issue. Id. Defendant argues that the preliminary hearing testimony was improperly admitted because Defendant did not have an opportunity for a meaningful cross-examination of Romero. We review the admission of evidence pursuant to an exception or an exclusion to the hearsay rule under an abuse of discretion standard. State v. McClaugherty, 2003–NMSC–006, ¶ 17, 133 N.M. 459, 64 P.3d 486.

{5} “A hearsay statement consists of an out-of-court statement offered to prove the truth of the matter asserted,” and is inadmissible as substantive evidence unless it falls within an exclusion or exception to the hearsay rule. Id. Rule 11–804(A)(5) defines as unavailable a witness who “is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance ... by process or other reasonable means.” A statement of an unavailable witness is admissible if the unavailable witness's “[t]estimony [was] given as a witness at another hearing of the same or a different proceeding ... [and] if the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination.” Rule 11–804(B)(1); see also State v. Gonzales, 113 N.M. 221, 226, 824 P.2d 1023, 1028 (1992) (stating that the motives for cross-examination at the preliminary hearing and the trial must be similar, but need not be identical).

{6} Whether a party had an opportunity and similar motive to develop testimony must be determined on a case-by-case basis. Gonzales addressed a situation where the defendant had an opportunity to cross-examine a witness at a preliminary hearing, but at trial, when the witness was unavailable to testify, the defendant's theory of his defense had changed from self-defense to identification. 113 N.M. at 225–26, 824 P.2d at 1027–28. We noted that the Court of Appeals had set forth a “per se rule that absent extraordinary circumstances preliminary hearing testimony may be admitted at trial if the witness is unavailable because the motive to cross-examine is similar.” Id. at 226, 824 P.2d at 1028 (citing State v. Massengill, 99 N.M. 283, 285, 657 P.2d 139, 141 (Ct.App.1983)). Despite the change in the defendant's theory, Gonzales concluded that because the defendant “was given the opportunity to cross-examine the witness at the preliminary hearing, [the] defendant was not denied the right to confront the witness against him.” Id. at 227, 824 P.2d at 1029.

{7} In Henderson, the preliminary hearing testimony of two unavailable witnesses was admitted at trial. 2006–NMCA–059, ¶ 7, 139 N.M. 595, 136 P.3d 1005. “[T]he trial court acknowledged that [the d]efendant could not have cross-examined [the unavailable witnesses] at the preliminary hearing on all issues that were relevant to his defense because all the issues were not known at that time.” Id. The Court of Appeals nevertheless concluded that the defendant had an adequate opportunity for cross-examination because he was able to cross-examine the witness “about whether any crime was committed and whether [the d]efendant was involved.” Id. ¶ 12. The defendant, therefore, “had an ‘opportunity and similar motive’ to cross-examine [the witness] at the preliminary hearing as he would have at trial.” Id.

{8} In this case, the purpose of the preliminary hearing was to determine whether “there [was] probable cause to believe that the defendant committed an offense.” Rule 5–302(C) NMRA; see State ex rel. Whitehead v. Vescovi–Dial, 1997–NMCA–126, ¶ 5, 124 N.M. 375, 950 P.2d 818 (“The primary purpose of the preliminary examination is to provide an independent evaluation of whether the state has met its burden of demonstrating probable cause.”). At the preliminary hearing, Defendant questioned Romero about whether Romero witnessed Defendant engage in sexual intercourse with Victim; whether Defendant assaulted Victim, or removed Victim's clothes; and whether Romero witnessed anything “unusual” happen between Victim and Defendant that night. At the preliminary hearing, Defendant argued that there was insufficient evidence to establish probable cause that Defendant committed a crime, and that the case should not be bound over for trial; his motive for cross-examining Romero, therefore, was to show that Defendant did not rape and murder Victim.

{9} Defendant's motive at trial likewise was to demonstrate that he was not guilty of raping and murdering Victim. During both proceedings, Defendant's motive was to discredit the State's case and to argue that the evidence did not establish his guilt. We conclude, therefore, that because Defendant had an opportunity and similar motive to cross-examine Romero at the preliminary hearing as he did at trial, the district court did not abuse its discretion in admitting Romero's preliminary hearing testimony at trial.

{10} Having determined that the Rules of Evidence were not violated by the admission of Romero's preliminary hearing testimony, we turn to the constitutional question. Claimed violations of the Confrontation Clause are questions of law which we review de novo. Id. ¶ 6.

{11} Under the Sixth Amendment to the United States Constitution, all criminal defendants “shall enjoy the right ... to be confronted with the witnesses against him.” Testimonial statements satisfying the Rules of Evidence do not necessarily satisfy the requirements of the Confrontation Clause. Crawford v. Washington, 541 U.S. 36, 50–51, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (“Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices.”). When admitting testimonial statements, the Confrontation Clause requires that the accused have a prior opportunity for cross-examination. Id.; accord United States v. Aldridge, 413 F.3d 829, 836 (8th Cir.2005) (Bye, J., concurring in part and dissenting in part) (“The main and essential purpose of confrontation is to provide a meaningful opportunity for the cross-examination of the adverse witness.”). Once a defendant has tested the reliability of an unavailable witness's testimony against him in the “crucible of cross-examination,” the demands of the Confrontation Clause have been met. Crawford, 541 U.S. at 61, 68, 124 S.Ct. 1354. When a witness testifies under oath at a preliminary hearing, admission of that preliminary hearing testimony does not violate the Confrontation Clause if: “(1) the witness is unavailable; and (2) the defendant had a prior opportunity to cross-examine the statement that is now being offered into evidence against him.” Henderson, 2006–NMCA–059, ¶ 16, 139 N.M. 595, 136 P.3d 1005 (emphasis omitted).

{12} Defendant had an opportunity to cross-examine Romero, and actually did cross-examine him, on the “statement that is now being offered into...