State v. Alvarez-Lopez

• Decision Date: 20 August 2004
• Docket Number: No. 869., No. 868, No. 27
• Citation: 98 P.3d 699,2004 NMSC 30,136 N.M. 309
• Parties: STATE of New Mexico, Plaintiff-Petitioner, v. Mario Hector ALVAREZ-LOPEZ, Defendant-Respondent. State of New Mexico, Plaintiff-Respondent, v. Mario Hector Alvarez-Lopez, Defendant-Petitioner.
• Court: New Mexico Supreme Court

98 P.3d 699

136 N.M. 309

2004 NMSC 30

STATE of New Mexico, Plaintiff-Petitioner, v. Mario Hector ALVAREZ-LOPEZ, Defendant-Respondent.

State of New Mexico, Plaintiff-Respondent, v. Mario Hector Alvarez-Lopez, Defendant-Petitioner.

Nos. 27,868, 27,869.

Supreme Court of New Mexico.

August 20, 2004.

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

John Bigelow, Chief Public Defender, Laurel A. Knowles, Assistant Appellate Defender, Santa Fe, NM, for Defendant.

OPINION

MINZNER, Justice.

{1} Defendant Mario Hector Alvarez-Lopez was convicted by a jury of aggravated burglary, contrary to NMSA 1978, § 30-16-4 (1963); conspiracy to commit burglary, contrary to NMSA 1978, § 30-28-2 (1979); and one count each of larceny over $250 and larceny of a firearm, contrary to NMSA 1978, § 30-16-1 (1987). At Defendant's trial, the district court admitted into evidence under the hearsay exception for statements against penal interest, see Rule 11-804(B)(3) NMRA 2004, certain hearsay statements by an accomplice made while in custody. On appeal, the Court of Appeals held the admission of those statements did not violate Defendant's Sixth Amendment right to confrontation, but the Court also held Defendant's convictions for both larceny over $250 and larceny of a firearm violated his Fifth Amendment right not to be placed in double jeopardy. State v. Alvarez-Lopez, 2003-NMCA-039, ¶ 35, 133 N.M. 404, 62 P.3d 1286. Both Defendant and the State petitioned us to review the Court of Appeals' opinion. We granted certiorari on both petitions pursuant to NMSA 1978, § 34-5-14(B) (1972) and Rule 12-502 NMRA 2004. We now consolidate the two appeals pursuant to Rule 12-202(F)(2) NMRA 2004 and reverse.

{2} The parties briefed the issues on which we granted certiorari, and we heard oral argument. After oral argument and before rendering our opinion in this case, the United State Supreme Court decided Crawford v. Washington, ___ U.S. ___, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which substantially altered the federal Confrontation Clause analysis for statements against penal interest. Consequently we ordered supplemental briefing. In briefing, the State raised the possibility Defendant had forfeited his constitutional right to confrontation by absconding before his trial. We hold he did not. We also hold under Crawford the district court erred in admitting into evidence testimonial statements made by an accomplice inculpating Defendant. "Where testimonial evidence is at issue,... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Id. at 1374. Finally, we hold the error was not harmless beyond a reasonable doubt. Because the issue may arise on remand, we also hold Defendant was not placed in double jeopardy by his convictions for both larceny over $250 and larceny of a firearm. As a result of our holding on Defendant's Confrontation Clause claim, we reverse each of his convictions; however, on remand, if the State retries Defendant, the Double Jeopardy Clause does not prevent Defendant from being convicted of both larceny over $250 and larceny of a firearm.

I

{3} On April 19, 1993, the victim's house was burglarized. The victim testified he was at work that day when he received a phone call informing him that someone was looking in a window of his mobile home. He drove home to check on the situation and when he arrived the victim saw a turquoise car parked in front of his residence. Defendant appeared from behind the house. The victim asked him what he was doing and Defendant told the victim he was looking for someone who dealt with horses. The victim told him there were no horses there and the man got in the turquoise car and drove away. The victim then walked behind his house and encountered a man later identified as Benjamin Perches coming out of the residence carrying a tape measure and a box cutter belonging to the victim. Perches spoke only Spanish and could not say what he had been doing in the house. The victim went into the mobile home and found his VCR, shoes, and guns piled in the hallway. The victim came back outside and held Perches at gunpoint until the police arrived and arrested him.

{4} At the sheriff's department, Perches waived his right to remain silent and described the burglary to Sgt. Ed Miranda. Perches claimed that Defendant wanted to burglarize a house and planned the burglary. When they got to the victim's house, Defendant broke a window with a tire iron to gain entry into the house. Perches stated he only wanted to take a VCR and some shoes from the house, but Defendant broke into the victim's gun cabinet and gathered rifles. While Perches was trying to take the VCR, Defendant told him, "Let's go! Let's go! Bring the rifles and let's go." As Perches was leaving the house, he was stopped and questioned by the victim. The victim went inside his house, and when he came back he held Perches at gunpoint until officers from the sheriff's department arrived. During the interrogation, Perches admitted he went into the house and took the VCR, but claimed Defendant was the one who took the rifles.

{5} Defendant was indicted in April 1993. Following his indictment, Defendant absconded and was a fugitive for over seven years. In July 2000, Defendant informed the district court that he was incarcerated on federal charges. Perches had completed his prison sentence and had been deported to Mexico the previous month. The State unsuccessfully attempted to locate Perches to have him testify at Defendant's trial. The district court found Perches' statements to the police admissible as statements against penal interest under Rule 11-804(B)(3) and allowed Sgt. Miranda to summarize the statements to the jury. Defendant was convicted of aggravated residential burglary, conspiracy to commit residential burglary, larceny over $250, and larceny of a firearm. The Court of Appeals affirmed each conviction, other than the conviction for larceny over $250. See Alvarez-Lopez, 2003-NMCA-039, ¶ 35,

133 N.M. 404,

62 P.3d 1286.

II

{6} We first address the issues raised by Defendant's appeal, arising out of the admission of Perches' statements. Defendant argues his constitutional right to confrontation was violated when the district court allowed Sgt. Miranda to summarize for the jury Perches' statements made to him during interrogation. In addressing this argument, we must determine whether Defendant forfeited his right to confrontation by absconding, whether his right to confrontation was actually violated, and, if so, whether that violation can be deemed harmless. The Confrontation Clause of the Sixth Amendment guarantees all criminal defendants, state and federal, the right "to be confronted with the witnesses against" them. U.S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (applying federal Sixth Amendment to the states). As an initial matter, we do not find it necessary in this case to interpret the Confrontation Clause of our state constitution, see N.M. Const. art. II, § 14, any more broadly than the federal Confrontation Clause. As in State v. Toney, 2002-NMSC-003, ¶ 8, 131 N.M. 558, 40 P.3d 1002, we limit the following discussion to an analysis under the federal Confrontation Clause.

A

{7} Before turning to the merits of Defendant's Sixth Amendment claim, we first consider whether, as the State has contended in supplemental briefing, Defendant by his wrongdoing forfeited his right to confrontation. Defendant's trial was originally scheduled for December 9, 1993. At that time, Perches had pleaded guilty to several charges and was serving his prison sentence. The State subpoenaed Perches to be a witness against Defendant. However, Defendant failed to show up for his trial and a bench warrant was issued. Defendant was a fugitive for over seven years before personally notifying the district court and the district attorney, in July 2000, that he was incarcerated in Arizona on federal charges and wished to have his New Mexico case resolved. Perches had been deported to Mexico the previous month and was unavailable to testify at Defendant's trial. At Defendant's trial on November 27, 2000, the district court admitted into evidence Perches' previous statements to the police. Based on these facts, the State argues Defendant forfeited his right to confrontation by his wrongful act of absconding.

{8} The United States Supreme Court has long held a Defendant's right to confrontation may be forfeited by his own wrongdoing. See Reynolds v. United States, 98 U.S. 145, 158, 25 L.Ed. 244 (1878)

. The rationale underlying such a rule of forfeiture is "the law [will not] allow a person to take advantage of his own wrong." United States v. Mastrangelo, 693 F.2d 269, 272 (2d Cir.1982) (quotation marks and quoted authority omitted); see also United States v. Cherry, 217 F.3d 811, 815 (10th Cir.2000) ("To permit the defendant to profit from [wrongful] conduct would be contrary to public policy, common sense and the underlying purpose of the confrontation clause.") (quotation marks and quoted authority omitted). As the Second Circuit Court of Appeals stated in Mastrangelo:

[I]f a witness' silence is procured by the defendant himself, whether by chicanery, by threats, or by actual violence or murder, the defendant cannot then assert his confrontation clause rights in order to prevent prior grand jury testimony of that witness from being admitted against him. Any other result would mock the very system of justice the confrontation clause was designed to protect.

693 F.2d at 272-73 (internal citations omitted).

{9} For these reasons, the Federal Rules of Evidence were amended in 1997 to include Rule 804(b)(6), which permits the introduction of otherwise inadmissible hearsay when the "statement [is] offered against a party that has engaged or acquiesced in wrongdoing that was...