State v. Garcia
| Decision Date | 16 January 2013 |
| Docket Number | Docket No. 30,852 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. DEREK GARCIA, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Opinion Number: __________
APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
Gary K. King, Attorney General
Yvonne M. Chicoine, Assistant Attorney General
for Appellee
Bennett J. Baur, Acting Chief Public Defender
Karl Erich Martell, Assistant Appellate Defender
Santa Fe, NM
for Appellant
{1} Convicted of two counts of second degree criminal sexual contact of a minor (CSCM), Defendant appeals. We hold that the district court erred by concluding that a transcript of Defendant's police station interview would be too confusing for the jury, once it was redacted in a manner consistent with the court's in limine ruling, without first reviewing the redacted form of the transcript. However, we conclude that this error was harmless. We hold further that the district court erred by not conducting an in camera review of records Defendant sought in discovery. We remand for district court review of theserecords to determine (1) if any portion of the records is material to the charges or the defense against them, and (2) if exclusion of material portions was prejudicial to Defendant. We are not persuaded by Defendant's other assertions of error.
{2} Defendant was the live-in boyfriend of Victim's mother, with whom he had three children, the oldest of whom was four years younger than Victim. Victim, who was eight years old, also lived in the home. In February 2009 Defendant was the caretaker of the four children while Victim's mother worked the night shift at a Burger King.
{3} On February 12, 2009, Victim reported at school to a Children, Youth and Families Department (CYFD) services provider that the night before, Defendant had touched her vaginal area when he was in her room. Victim was interviewed about the incident on February 17, 2009, by Hank Baskett, the executive director of Oasis Children's Advocacy Center, a forensic interviewing service, while Detective Todd Moore of the Portales Police Department and Investigator Janelle Pacheco of CYFD watched on a closed-circuit television from another room.
{4} The same day, after watching Victim's Oasis interview, Detective Moore and Investigator Pacheco went to Defendant's home, where they conducted an audio-recorded interview of Defendant. Defendant told Investigator Pacheco and Detective Moore that he had entered Victim's room the night of February 11, 2009, and did not mean to touch her inappropriately, but instead intended to "scoot her over in the bed." The next day, February 18, 2009, Detective Moore conducted a second audio-recorded interview of Defendant at the police station with Investigator Pacheco present. The interview lasted about one hour. Prior to trial, the State prepared a written transcript of the interview.
{5} Defendant was found guilty, and a penitentiary sentence of thirty-one years, with nineteen years suspended, was imposed. Additional facts are included as needed in our analysis of Defendant's arguments.
{6} Defendant makes six arguments. He argues first that the district court abused its discretion when it refused to admit the transcript of the police station interview after it was used to refresh the memory of several witnesses. Next, he argues that the district court erred in failing to order disclosure of CYFD records related to allegations of abuse by Victim. He also maintains that the district court's grant of the State's motion in limine to limit reference at trial to earlier allegations by Victim violated his due process rights and ability to cross-examine witnesses against him. In addition, he argues that there was insufficient evidence to support two convictions for CSCM and that the district court improperly denied his motion to suppress the statements he made in the police station interview. Finally, he argues that even if these errors are not reversible individually, their cumulative effect was to deprivehim of a fair trial. We address Defendant's arguments in the order presented.
{7} Defendant contends that because the State's witnesses mischaracterized his statements from the interview, he was entitled to introduce into evidence the full context of those statements pursuant to the rule of completeness embodied in Rule 11-106 NMRA and, therefore, that the district court erred in its ruling denying admission into evidence of the transcript of the interview. Before analyzing Defendant's contention, we address the State's arguments that the issue is not properly before us.
{8} The State argues that Defendant failed to preserve his argument that he had a right to admission of the transcript under Rule 11-106 because he did not direct the district court to that specific rule when he argued that the transcript should be admitted into evidence. See State v. Ortiz, 2009-NMCA-092, ¶ 32, 146 N.M. 873, 215 P.3d 811 . We conclude that the district court and the State were fairly on notice of Defendant's assertion that the transcript was admissible because his statements were being taken out of context through the State's use of Defendant's statements and that the transcript would show the actual context and content of his statements. Therefore, despite Defendant's failure to cite the specific rule, we conclude that the argument was sufficiently preserved for appellate review. See State v. Smile, 2009-NMCA-064, ¶ 39, 146 N.M. 525, 212 P.3d 413, cert. quashed, 2010-NMCERT-006, 148 N.M. 584, 241 P.3d 182; see also Rule 12-216 NMRA ().
{9} The State also contends that because contents of the interview were admitted only through the testimony of the State's witnesses and Defendant, and no portion of the written transcript itself was actually introduced into evidence, the rule of completeness does not apply. See Rule 11-106 (1996) (); Rule 11-612 NMRA1 ().
{10} We conclude that where, as in this case, the State used the transcript extensively to ask about specific statements made by Defendant, the contents of the transcript were "introduced" into evidence sufficiently to invoke Rule 11-106. See 21A Charles AlanWright et al., Federal Practice and Procedure: Federal Rules of Evidence § 5075, at 39-40 (2d ed. 2012).
Most courts that have considered the question have held that using a writing to refresh the recollection of a witness is a sufficient use of the writing to trigger [Fed. R. Evid.] 106. Given that [Fed. R. Evid.] 612 gives the opponent the power to disrupt the proponent's case to inspect the writing, as well as the right to introduce parts of the writing into evidence, policy would seem to make this an easy case for the application of [Fed. R. Evid.] 10[6].2
Id. Under the circumstances, we would be placing form over substance if we required the physical writing itself to be introduced into evidence for Rule 11-106 to be invoked.
{11} Turning to the merits, we review a district court's ruling excluding evidence for an abuse of discretion. See State v. Lucero, 1998-NMSC-044, ¶ 5, 126 N.M. 552, 972 P.2d 1143. To the extent our analysis requires interpretation of applicable rules of evidence, our review is de novo. State v. Moreland, 2007-NMCA-047, ¶ 9, 141 N.M. 549, 157 P.3d 728, aff'd, 2008-NMSC-031, 144 N.M. 192, 185 P.3d 363. The applicable version of Rule 11-1063 states: "When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." Rule 11-106. Our rule "is an expression of the common law rule of completeness." Barr, 2009-NMSC-024, ¶ 33. "The primary purpose behind the rule of completeness is to eliminate misleading or deceptive impressions created by creative excerpting." Id. ¶ 34; see State v. Baca, 120 N.M. 383, 390, 902 P.2d 65, 72 (1995) (). "[T]he rule of completeness applies to insinuations, innuendos, and omissions." State v. Patterson, 625 S.E.2d 239, 243 (S.C. Ct. App. 2006).
{12} Defendant testified at trial on his own behalf. The State refreshed Defendant's recollection with the transcript multiple times during cross-examination. In fact, most of theState's cross-examination concerned Defendant's statements at the police station; the prosecutor often read specific questions and answers directly from the transcript and referenced specific pages and lines. At other times, the State asked questions of Defendant and requested that he locate the answers in the transcript. Indeed, at one point, the court recessed to allow Defendant time to review the entire transcript and count the occurrences of a given statement. Defendant maintained in his testimony that when he made the statements cited by the State he was talking about touches that occurred while play-wrestling with Victim, not inappropriate sexual...
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