State v. Desnoyers, 26,379.

• Decision Date: 24 September 2002
• Docket Number: No. 26,379.,26,379.
• Citation: 55 P.3d 968,2002 NMSC 31,132 N.M. 756
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jason DESNOYERS, Defendant-Appellant.
• Court: New Mexico Supreme Court

55 P.3d 968

132 N.M. 756

2002 NMSC 31

STATE of New Mexico, Plaintiff-Appellee, v. Jason DESNOYERS, Defendant-Appellant.

No. 26,379.

Supreme Court of New Mexico.

September 24, 2002.

Phyllis H. Subin, Chief Public Defender, Will O'Connell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Patricia A. Madrid, Attorney General, James O. Bell, Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

FRANCHINI, Justice.

{1} After a jury trial, Defendant Jason Desnoyers was convicted of deliberate intent first degree murder, contrary to NMSA 1978, § 30-2-1(A)(1) (1994); conspiracy to commit first degree murder, contrary to NMSA 1978, § 30-28-2 (1979) and Section 30-2-1; kidnapping, contrary to NMSA 1978, § 30-4-1 (1995); criminal sexual penetration, contrary to NMSA 1978, § 30-9-11 (2001); five counts of tampering with evidence, contrary to NMSA 1978, § 30-22-5 (1963); three counts of conspiracy to commit tampering with evidence, contrary to Section 30-28-2 and Section 30-22-5; and criminal solicitation to commit tampering with evidence, contrary to NMSA 1978, § 30-28-3 (1979) and Section 30-22-5. On appeal, Defendant argues that the trial court erred in its evidentiary and discovery rulings and by not granting his motion for a new trial. Defendant's first trial ended in a mistrial, and he raises the claim that his right to be free of double jeopardy was violated when he was indicted on additional charges before his second trial. We review the case under Rule 12-102(A)(1) NMRA 2002 (providing for direct appeal to the Supreme Court in cases in which a sentence of life imprisonment has been imposed). We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

{2} On March 22, 1998, the body of the victim, an eighteen-year-old female student from New Mexico State University, was found in the desert west of Las Cruces, New Mexico. She had been stabbed to death and was wearing only a single sock and a bra which had been pushed up toward her neck. The victim was last seen in the company of Defendant and Jesse Avalos¹, on the evening of January 14, 1998. On January 15, her roommates noticed that the victim was missing and called her parents. Her parents then notified the university that she was missing. Defendant was interviewed on January 19 by police officers and then later by the FBI. In late January, under a search warrant, the police obtained hair, saliva, and blood samples from Defendant. That same day Defendant left New Mexico for San Diego, California. In mid-February, two Las Cruces police detectives and the FBI went to San Diego to interview Defendant again about the evening of January 14, but were unable to locate him. Defendant had relatives in the area, but they told the police that Defendant had not been in touch with them. On February 19, Defendant was indicted for tampering with evidence and solicitation to commit tampering with evidence, and an arrest warrant was issued. The Las Cruces detectives returned to San Diego on March 17, 1998, after Defendant had been arrested on the outstanding warrant by the San Diego sheriff's department. Defendant signed a waiver of his Miranda rights and gave a statement to the officers. He returned to Las Cruces with the detectives. After the victim's body was found on March 22, Defendant was indicted for first degree murder and other crimes related to the death of the victim.

{3} At trial, a pathologist from the Office of Medical Investigator (OMI) testified about the autopsy she had performed on the victim. She stated that the cause of death was multiple stab and cutting wounds to the head, neck, chest, and back; the victim had been stabbed at least thirty times. In addition, there were numerous severe blunt wounds to the head. The victim had wounds on her hands consistent with defense injuries. A forensic serology DNA analyst from the Department of Public Safety crime lab testified that the results of DNA testing from the sample taken from under the victim's fingernails were consistent with that of the DNA of Defendant and the victim. He also testified that the blood mixtures found on a black jacket of Defendant's and the shower curtain from Avalos's apartment were consistent with the blood of Defendant, Avalos, and the victim. The jury heard testimony that the seat of Defendant's pickup truck, in which the three had been riding that evening, had been cleaned by Defendant. Testing revealed the presence of blood in the center of the bench seat but because of the cleaning, DNA samples could not be obtained from the seat. At the conclusion of the trial, Defendant was convicted of all charges.

II. DISCUSSION

A. Admission of Evidence.

1. Statements of Witnesses.

{4} Defendant challenges the admission of testimony of two witnesses who testified about statements made by Defendant and by Avalos. He contends that his constitutional right to counsel and right of confrontation under the United States and New Mexico constitutions² were violated by the admission of the testimony. See U.S. Const. amend. VI; N.M. Const. art. II, § 14. He also objects to the trial court's having denied the admission of some statements allegedly made by Avalos about the victim. "As a general matter, we review a trial court's admission of evidence under an exception to the hearsay rule only for an abuse of discretion." State v. Torres, 1998-NMSC-052, ¶ 15, 126 N.M. 477, 971 P.2d 1267; accord State v. Benavidez, 1999-NMSC-041, ¶ 2, 128 N.M. 261, 992 P.2d 274

; State v. Gonzales, 1999-NMSC-033, ¶ 5, 128 N.M. 44, 989 P.2d 419,

cert. denied, 529 U.S. 1025, 120 S.Ct. 1434, 146 L.Ed.2d 323 (2000). We review de novo the question of whether the Confrontation Clause has been violated by the admission of hearsay evidence. Gonzales, 1999-NMSC-033, ¶ 16,

128 N.M. 44,

989 P.2d 419.

a. Admissions by Defendant.

{5} During his first trial, Defendant made incriminating remarks during the course of several conversations with Larry Otero, a prisoner at the Bernalillo County Detention Center where Defendant was being held for the trial. Mr. Otero notified authorities about Defendant's remarks, and the statements were later admitted during Defendant's second trial through the testimony of Mr. Otero. Before the second trial, Defendant attempted to have the statements excluded on the basis that the testimony violated his right to counsel because Mr. Otero was a government agent. This claim was apparently based on the fact that Mr. Otero had been a confidential informant for the narcotics division of Albuquerque Police Department at an earlier time. At the conclusion of an evidentiary hearing on Defendant's motion, the trial court denied the motion, concluding that Mr. Otero was not acting as a confidential informant and was not an agent of the State when he spoke with Defendant.

{6} The Sixth Amendment is implicated if the government has elicited statements from an accused after the right to counsel has attached. Massiah v. United States, 377 U.S. 201, 205-06, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). To establish a Sixth Amendment violation, the following requirements must be met: (1) the right to counsel had attached at the time of the alleged infringement; (2) the informant was acting as a government agent; and (3) the informant deliberately elicited the incriminating statement from the defendant. Matteo v. Superintendent, 171 F.3d 877, 892 (3rd Cir.1999). However, "the Sixth Amendment is not violated whenever—by luck or happenstance—the State obtains incriminating statements from the accused after the right to counsel has attached." Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985).

{7} It is undisputed that Defendant's right to counsel had attached; at the time he met Mr. Otero, Defendant was on trial for the victim's murder. See Moulton, 474 U.S. at 170,

106 S.Ct. 477 (stating that the right to counsel attaches when adversarial judicial proceedings have been initiated). The question to be resolved is whether Mr. Otero was acting at the behest of the State when Defendant made the incriminating statements. As Defendant himself acknowledges, there is no evidence in the record that detectives made arrangements with Mr. Otero beforehand to elicit information from Defendant or that he was deliberately placed in the cell next to Defendant. The record shows that Mr. Otero testified at length during the trial and was cross-examined by Defendant about the possible existence of any arrangements and Mr. Otero's motive for testifying. The undisputed testimony at trial was contrary to Defendant's claims. We therefore affirm the trial court's rejection of this claim; the court did not abuse its discretion in finding that Mr. Otero was not a government agent and in admitting his testimony.

b. Statement against Penal Interest by Avalos.

{8} Defendant also objects to the testimony of another witness, William Marckstadt, who came forward after Defendant's first trial. Marckstadt shared a cell with Avalos in the Dona Ana County Detention Center when he heard Avalos make incriminating statements to another group of prisoners about having taken turns with another man in raping and stabbing a female college student. In a pretrial motion, Defendant tried to have these statements excluded, arguing (1) that Mr. Marckstadt was not a reliable witness and (2) the statements were inadmissible hearsay which violated his right to confrontation. The trial court ruled that the statements by Avalos were admissible as statements against penal interest under Rule 11-804(B)(3) NMRA 2002, an exception to the hearsay rule that applies when the declarant is unavailable.

{9} On appeal, Defendant renews the claims that he made to the trial court. First, he contends that the trial court erred in admitting the testimony claiming that Mr. Marckstadt was a jailhouse informant and, therefore, was an inherently unreliable witness. In support of his proposition, Defendant refers us to cases from other jurisdictions. Howeve...