1998 -NMSC- 52, State v. Torres, 24,000

• Citation: 971 P.2d 1267,1998 NMSC 52,126 N.M. 477
• Decision Date: 03 December 1998
• Docket Number: No. 24,000,24,000
• Parties: , 1998 -NMSC- 52 STATE of New Mexico, Plaintiff-Appellee, v. Jerry TORRES, Defendant-Appellant.
• Court: Supreme Court of New Mexico

Page 1267

971 P.2d 1267

126 N.M. 477, 1998 -NMSC- 52

STATE of New Mexico, Plaintiff-Appellee, v. Jerry TORRES, Defendant-Appellant.

No. 24,000.

Supreme Court of New Mexico.

Dec. 3, 1998.

Phyllis H. Subin, Chief Public Defender, Sara T. Harmon, Assistant Appellate Defender, Santa Fe, for appellant.

Hon. Tom Udall, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, for appellee.

OPINION

SERNA, J.

¶1 Defendant Jerry Torres appeals his convictions of first degree depraved-mind murder, see NMSA 1978, § 30-2-1(A)(3) (1994), aggravated battery with a firearm (two counts), see NMSA 1978, § 30-3-5(C) (1969), aggravated assault with a firearm (three counts), see NMSA 1978, § 30-3-2(A) (1963), and shooting at a dwelling or occupied building, see NMSA 1978, § 30-3-8(A) (1993), each of which was obtained following a jury trial. Defendant Torres contends on appeal that the trial court erred in admitting the out-of-court statement of a prosecution witness. We affirm.

I. Facts

¶2 On the night of December 31, 1995, Defendant Torres attended a New Year's Eve party (the South Spruce party) in Roswell, New Mexico. Sometime before midnight, occupants of a passing car fired several gunshots in the direction of the South Spruce party. Shortly thereafter, several individuals from the South Spruce party drove to another party (the West Deming party) several blocks away, and two people, one with a shotgun and one with a nine-millimeter pistol, fired into a crowd standing in the front yard. The latter shooting resulted in the death of Robert Bonilla and injuries to Elizabeth Galindo and Billy Ray Castillo. Police later learned that a nine-millimeter gun caused the death and the injuries to these individuals. The State accused Defendant Torres of firing the nine-millimeter gun into the crowd and charged him with, inter alia, depraved-mind murder.

¶3 At trial, the State introduced the testimony of several witnesses from the West Deming party. The witnesses identified the car and described the shooting, testifying that one of the assailants yelled, "Westside," which was allegedly a gang reference. The witnesses, however, were unable to identify the assailants. The State also introduced the testimony of Russell Lueras. Lueras testified that he attended the South Spruce party, which he described as being a Westside gang party and which was held at Jimmy Barela's house. At the time of the first shooting, Defendant Torres, Lueras, Earsley Chico Barnett, and Jimmy Barela were standing outside and heard the gunshots. After determining that the bullets had hit an acquaintance's van, Lueras shined the lights of his car on the van to get a closer look. At that time, unidentified individuals in a car drove by to tell them where the other car had gone. After Defendant Torres and Chico Barnett got into his car, Lueras then drove to the West Deming party. Lueras testified that, when he stopped across the street from the party, Defendant Torres exited the driver's side door from the backseat, with Lueras leaning forward, and Chico Barnett exited the passenger side. Lueras testified that, even though he was armed, he remained in the car because another car in front of him had its lights shining into his car and made him nervous. A few seconds after Defendant Torres and Chico Barnett got out of the car, Lueras heard several gunshots. He testified that he did not see who was firing or what type of gun Defendant Torres or Chico Barnett had at the time. However, Lueras testified that, upon returning to the South Spruce party, he saw Chico Barnett get out of his car holding a shotgun and Defendant Torres holding a nine-millimeter gun.

¶4 The State also called Chico Barnett to testify regarding the shooting at the West Deming party. At the time he testified, Barnett had already pleaded guilty to two counts of aggravated battery, one count of aggravated assault, and one count of shooting at a dwelling in connection with the shooting at the West Deming party and had been sentenced to twelve years imprisonment. Barnett testified that he had no agreement with the State for his sentencing or in return for his testimony against Defendant Torres. He testified that he attended the party at South Spruce, that he got into a car with other people, and that they then drove to the West Deming party. Barnett also testified that he had a shotgun and that he fired the shotgun one time at the West Deming party. However, when the prosecution asked whose car it was, who was driving, who else was in the car, whether Defendant Torres had been in the car, and whether anyone else had fired a gun, Barnett repeatedly responded that he did not remember.

¶5 The State attempted to refresh Barnett's memory by showing him a transcript of an audio recording of his statement to the police made two days after the shooting and eventually, outside the presence of the jury, by playing the tape for him. Barnett testified that he gave the statement to the police, but he did not remember more detail about the shooting even after hearing the statement. After this failed attempt at refreshing Barnett's memory, the State sought to introduce the recording into evidence as a statement against Barnett's penal interest. See generally Rule 11-804(B)(3) NMRA 1998 (providing that statements against penal interests are not excluded by the hearsay rule if the witness is unavailable).

¶6 In his statement to the police, Barnett gave a more detailed account of the shooting than he did at trial. He told the police that, while he was at the South Spruce party, a small white car drove past and someone inside the car fired a gun, hitting a nearby van. After someone ascertained that the car had gone to the West Deming party, Barnett and Defendant Torres got into Lueras's car, and all three of them drove to the West Deming party. Barnett stated that he was sitting in the passenger seat and that Defendant Torres was sitting in the backseat. Once they arrived at the West Deming party, Defendant Torres and Barnett got out of the car, with Barnett going around the back and Defendant Torres exiting the driver's side, which faced the party. Barnett told the police that he had a shotgun, which he described in some detail, and that he fired the shotgun one time into a crowd of about fifteen or twenty people outside at the party. He also told the police that Defendant Torres yelled, "Westside," and then fired a nine millimeter several times into the crowd. Finally, he told police that he did not learn that someone had been hit by the gunshots until hearing it on the news that night or the next day.

¶7 Before introducing the recorded statement into evidence, the State offered the testimony of Detective John Wayne Davis, who had been present for Barnett's statement. Detective Davis testified that he issued Miranda warnings to Barnett and then took his statement. He identified the State's exhibit as the tape of the interview. He also testified that the police had not offered any leniency toward Barnett in exchange for his statement. He further testified that Barnett was not told which weapon had killed Bonilla and that the type of weapon producing the fatal shot had not been publicized at the time of the statement.

¶8 Defendant Torres's counsel objected to the admission of the audio recording on the grounds that it violated his right to cross-examine the witness, that the statement lacked sufficient reliability because it shifted blame to Defendant Torres, and that, because of his presence at trial, the witness was not unavailable as required by Rule 11-804(B). Defendant Torres contended that, even if Barnett did not know the type of weapon that had produced the fatal shot, Barnett would have known that more shots were fired from the nine-millimeter gun. As a result, Defendant Torres argued, Barnett attempted to shift blame by saying that Defendant Torres fired the nine millimeter, relying on the higher probability that a nine-millimeter bullet killed Bonilla. The trial court concluded that Barnett was unavailable, see Rule 11-804(A)(3) (defining "unavailability" as including situations in which the declarant "testifies to a lack of memory of the subject matter of the declarant's statement"), and, relying on State v. Sanchez, 112 N.M. 59, 62-65, 811 P.2d 92, 95-98 (Ct.App.1991), that admission of the recorded statement did not violate the Confrontation Clause of the Sixth Amendment to the United States Constitution. As the sole ground of his appeal, Defendant Torres attacks this ruling of the trial court on both evidentiary and constitutional grounds.

II. Statements Against Penal Interests

¶9 Torres contends that the trial court erroneously admitted Barnett's statement under Rule 11-804(B)(3). Specifically, he argues that Barnett's statement was not genuinely against his penal interest because it shifted blame from Barnett to Torres.¹ We disagree.

¶10 Rule 11-804(B)(3) provides that a statement is not excluded by the hearsay rule

if the declarant is unavailable as a witness ... [and the] statement ... was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.

Torres urges this Court to follow the United States Supreme Court's analysis of Rule 804(b)(3) of the Federal Rules of Evidence in Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994).

¶11 In Williamson, the Court reviewed the admissibility of a statement by a participant in a crime, made while in the custody of law enforcement officials following the declarant's arrest, which described the participant's and the defendant's respective involvement in the crime. 512 U.S. at 596-97, 114 S.Ct. 2431. The Court...