State v. Alvarez-Lopez

• Decision Date: 19 December 2002
• Docket Number: No. 22,189.,22,189.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Mario Hector ALVAREZ-LOPEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

62 P.3d 1286

133 N.M. 404

STATE of New Mexico, Plaintiff-Appellee, v. Mario Hector ALVAREZ-LOPEZ, Defendant-Appellant.

No. 22,189.

Court of Appeals of New Mexico.

December 19, 2002.

Certiorari Granted February 4, 2003.

Patricia A. Madrid, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Appellee.

Phyllis H. Subin, Chief Public Defender, Laurel A. Knowles, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Granted, No. 27,869, February 4, 2003.

OPINION

SUTIN, Judge.

{1} Defendant Mario Alvarez-Lopez appeals his convictions for aggravated residential burglary, conspiracy to commit residential burglary, larceny over $250, and larceny of a firearm. As error, he asserts (1) erroneous admission of hearsay statements of a co-defendant, (2) double jeopardy, and (3) insufficiency of evidence. We affirm Defendant's convictions for aggravated burglary, conspiracy to commit burglary, and larceny of a firearm. We reverse Defendant's conviction of larceny over $250 on the ground of double jeopardy.

BACKGROUND

{2} While at work, the victim was informed that someone was looking in the window of his mobile home. He drove home with an employee and saw an unfamiliar car with a Texas license plate parked in front of his home. Defendant appeared from behind the home, and the victim asked Defendant what he was doing there. Defendant responded that he was looking for somebody who was dealing in race horses. Victim said there was no such person on the property and Defendant drove away in the Texas car.

{3} The victim noticed that a bedroom window had been broken. He then observed another man, later identified as Benjamin Valle Perches (co-defendant) come out of the home, carrying a tape measure and a utility knife belonging to the victim. While the employee kept watch over co-defendant, the victim went inside the home where he saw items piled up in the hallway, including several rifles and shotguns, a VCR, a pair of boots, and shoes, all belonging to the victim.

{4} The police arrived, arrested co-defendant, and read co-defendant his Miranda rights. At a police station, an officer interrogated co-defendant, who described the events and Defendant's participation in the burglary. Co-defendant identified Defendant from a photo array. Thereafter, co-defendant was deported to Mexico. He was not available for Defendant's trial.

{5} Defendant was convicted of aggravated residential burglary, NMSA 1978, § 30-16-4 (1963); conspiracy to commit residential burglary, NMSA 1978, § 30-28-2 (1979); larceny over $250 and larceny of a firearm, NMSA 1978, § 30-16-1 (1987). This appeal followed.

DISCUSSION

A. Admissibility of Co-Defendant's Statements

{6} On the grounds of hearsay and violation of the state and federal Confrontation Clauses, Defendant objected to the admission of co-defendant's out-of-court statements which were admitted in evidence as statements against penal interest. See U.S. Const. amends. VI, XIV; N.M. Const. art. II, § 14; Rule 11-804(B)(3) NMRA 2002. Defendant asserted the statements were not against co-defendant's penal interest because co-defendant had been caught red-handed at the scene of the crime and was only attempting to minimize his own role, shift primary responsibility to Defendant, and receive lenient treatment.

{7} The district court initially ruled a written statement admissible, but became troubled by one of co-defendant's remarks, namely, that "[Defendant] wanted to burglarize a house, he's always done that." Rather than admit the written statement, the court permitted the interrogating officer to summarize co-defendant's statement without mention of the troubling remark. The officer began his testimony with facts told to him by co-defendant but not in the written statement: that both men had been drinking beer at the home of a relative of Defendant, and then, as they drove away from the home, the two discussed committing the burglary. Then, summarizing the written statement, the officer testified that Defendant was driving the car; co-defendant did not know where he was or what town he was in; they stopped in front of the mobile home, and Defendant got out of the car with a tire iron and proceeded to break a window of the home with the tire iron; both men entered through the window; once inside, co-defendant took a VCR, along with a pair of shoes; Defendant broke into the gun cabinet by breaking the glass of the cabinet and then removed several rifles and shotguns; both men piled up the stolen items in the hallway; Defendant suddenly yelled to co-defendant to hurry up and to grab the rifles; Defendant fled, leaving co-defendant behind; co-defendant was caught by the victim coming out of the home.

{8} Defendant contends co-defendant's statements were made to curry favor and to shift blame to Defendant. As such, Defendant argues, co-defendant's statements were exculpatory, not inculpatory. Defendant therefore attacks the propriety of the admission of co-defendant's statements under Rule 804(B)(3) as statements against penal interest.

{9} Rule 11-804(B)(3) excepts from hearsay preclusion statements made against penal interest. We review under an abuse of discretion standard whether the statements were erroneously admitted by the district court under this exception. See State v. Reyes, 2002-NMSC-024, ¶¶ 34-35, 132 N.M. 576, 52 P.3d 948

; State v. Torres, 1998-NMSC-052, ¶ 15, 126 N.M. 477, 971 P.2d 1267 (recognizing that there is "nothing sufficiently unique about Rule 11-804(B)(3) [as would] convince [the Court] to depart from the deferential standard of review applicable to other exceptions to the hearsay rule"); State v. Attaway, 117 N.M. 141, 144, 870 P.2d 103, 106 (1994) (providing that "[i]f the concerns of judicial administration—efficiency, accuracy, and precedential weight—make it more appropriate for a district judge to determine whether the established facts fall within the relevant legal definition, we should subject his determination to deferential, clearly erroneous review"); see also State v. Benavidez, 1999-NMSC-041, ¶ 2, 128 N.M. 261, 992 P.2d 274 (reversing and vacating portion of Court of Appeals opinion that discussed statement against interest exception to hearsay rule on the grounds that Court of Appeals applied the de novo, rather than the abuse of discretion, standard of review).

{10} The New Mexico Supreme Court has supplied a framework within which to analyze a district court's admission of a statement under Rule 11-804(B)(3). In evaluating whether the court abused its discretion in its admission of co-defendant's statements under Rule 11-804(B)(3), we examine the statements considering the surrounding circumstances, "including to whom the statement was made, whether the declarant attempted to curry favor with authorities, and whether the statement is collateral to the declarant's criminal liability or exculpatory of the declarant." Torres, 1998-NMSC-052, ¶ 29,126 N.M. 477,971 P.2d 1267 (citations omitted). However, rather than require the district court to dissect inculpating narratives or confessions in such a fashion as would call for the redaction of large parts of a confession, our Supreme Court has concluded that "facially-neutral but contextually-incriminating details may be admitted if a reasonable person in the declarant's position would not have revealed them unless believing them to be true due to their strong tendency to subject the declarant to criminal liability." Id. ¶ 14; see State v. Gonzales, 1999-NMSC-033, ¶¶ 7-9, 128 N.M. 44, 989 P.2d 419

(declining to read declarant's statement in such a way as would cause it to lose any contextual meaning). The individual inculpatory statements must not be read in a vacuum, but rather must be understood within the context in which they are uttered. See id.; Torres, 1998-NMSC-052, ¶ 14,

126 N.M. 477,

971 P.2d 1267.

{11} Defendant wants this Court to look at the circumstances from co-defendant's point of view, that is, having been caught red-handed "with the goods" and in possession of a knife, he may have believed that whatever he said could not dig his guilt any deeper and that he would fare better if he spilled the beans and shifted blame. However, while this may truly have been what co-defendant was thinking or believed, the law approaches the question of whether statements are against penal interest from a more objective standpoint. Rule 804(B)(3) provides that a statement is not excluded by the hearsay rule if it is "so far tended to subject the declarant to ... criminal liability ... that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." Thus, we must view the statements from the viewpoint of a reasonable person in co-defendant's position.

{12} A person who knows he is committing one crime may also, at the same time, commit crimes of which he may not be aware. A person who knows he is committing one particular crime or type of crime should understand that statements he makes might draw different or further charges. Here, co-defendant undoubtedly knew he was stealing someone else's personal property. He was undoubtedly aware that, because he was caught red-handed stealing another's property from that person's residence, he would be charged with a residential burglary or larceny. At the same time, it was obvious to the police who arrested co-defendant that co-defendant had committed a residential burglary or larceny. However, nothing in the apprehension of co-defendant indicated a conspiracy or that co-defendant participated in aggravated burglary with a tire iron. Yet co-defendant made statements that were inculpatory as to the offenses of conspiracy and aggravated burglary with a tire iron. Thus, while he may not have consciously thought he might also be charged with conspiracy and participation in aggravated burglary with a tire iron, the fact is that he was charged with the former, and...