State v. Gutierrez, S-1-SC-36394

Docket NºNO. S-1-SC-36394
Citation482 P.3d 700
Case DateAugust 30, 2019
CourtSupreme Court of New Mexico

482 P.3d 700

STATE of New Mexico, Plaintiff-Appellee,
David GUTIERREZ II, Defendant-Appellant.

NO. S-1-SC-36394

Supreme Court of New Mexico.

Filing Date: August 30, 2019
Order on Rehearing November 5, 2020

NAKAMURA, Chief Justice.

{1} In 2002, Defendant David Gutierrez shot and killed a man. Gutierrez disclosed this fact to his wife and threatened to kill her if she ever told anyone about the murder. They divorced a short time later. Gutierrez remarried and also told his second wife about the murder. By the time of his 2017 murder trial, Gutierrez was estranged from his second wife. At trial, he invoked the spousal communication privilege to preclude both women from testifying about his role in the killing. Gutierrez's invocation of the spousal communication privilege prompts us to question its continued viability in New Mexico.

{2} We conclude that the spousal communication privilege has outlived its useful life and prospectively abolish it. As abolishment is prospective, we must evaluate its applicability in Gutierrez's case. We conclude that certain evidence was admitted at Gutierrez's trial in violation of the privilege, but conclude that the error was harmless. We reject all other arguments advanced by Gutierrez and affirm his convictions.


{3} On April 8, 2002, Jose Valverde was found dead in a boxcar he used as his home in Clovis, New Mexico. He had been shot in the head with a shotgun. In July 2015, more than thirteen years later, a grand jury indicted Gutierrez for the murder. Gutierrez's trial commenced in 2017.

{4} Gutierrez's ex-wife Nicole Cordova offered the following testimony at trial. She married Gutierrez in 2002, and the marriage lasted only two years. The victim, her uncle, had raped her several times when she was thirteen or fourteen years old. She told Gutierrez about the rapes some months before the victim was killed, and Gutierrez told her "not to worry about anything anymore." At the time the victim was killed, she and Gutierrez

482 P.3d 704

were living with his parents. On the day of the murder, Gutierrez left home for about a half hour and was visibly upset when he returned. Gutierrez told her that he "took care of it," and although he did not explain further, she knew what had happened: Gutierrez had killed the victim. Gutierrez told her that he needed help to find a shotgun shell and then they drove to the victim's boxcar. When she entered the boxcar, she saw that it was in disarray and that the victim's body was face down on the floor. She sifted through some beer cans, found a shotgun shell, and then walked outside. After she and Gutierrez returned home, he put the clothes and shoes he had been wearing into a bag and left with his father and brother to dispose of them. Gutierrez later threatened that she would suffer the same fate as the victim if she ever told anyone about what happened. The police questioned her on the day of the murder but she lied to them and never told anyone about Gutierrez's conduct or what had occurred because she was afraid of him. The police did not contact her again until a couple of years before trial when she finally told the truth.

{5} Gutierrez's second wife, Evelyn Franco, also testified at Gutierrez's trial and offered the following testimony. She married Gutierrez in May 2006. At the time of trial, they were still legally married but had not spoken in years. In early 2006, she and Gutierrez lived with his parents. There was frequent fighting and arguing in the household. During these fights, Gutierrez's parents would threaten to "send him away for the rest of his life." When she asked Gutierrez what his parents were talking about, he informed her that he had committed a murder. He elaborated that his ex-wife's uncle had molested her, so he went to his house, walked up to where he was laying on the couch, and fired a shotgun into his face killing him.

{6} The jury found Gutierrez guilty of willful, deliberate, and premeditated first-degree murder in violation of NMSA 1978, Section 30-2-1(A)(1) (1994). The district court sentenced Gutierrez to life imprisonment plus one year. He appeals directly to this Court. See N.M. Const. art. VI, § 2 ; Rule 12-102(A)(1) NMRA.


{7} Gutierrez raises five issues: (A) violation of the spousal communication privilege, (B) the sufficiency of the evidence to support the convictions, (C) violation of his right to testify before the grand jury, (D) destruction of evidence favorable to the defense, and (E) ineffective assistance of counsel. We address each issue in turn. Because we abolish the spousal communication privilege prospectively, we must also address its applicability in Gutierrez's case. Accordingly, the privilege issue is addressed in two parts.

A. Spousal Communication Privilege

{8} Subsection B of Rule 11-505 NMRA, New Mexico's spousal communication privilege, provides that "[a] person has a privilege to refuse to disclose, or to prevent another from disclosing, a confidential communication by the person to that person's spouse while they were married." This privilege "prohibits one spouse from testifying as to conversations or communications with the other spouse made in confidence during their marriage." 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence , § 505.03[1], at 505-5 (Mark S. Brodin, ed., Matthew Bender 2d ed. 2018). The privilege protects confidential communications at the time they are made and may, therefore, be invoked after the termination of the marital relationship. See id.

1. Continued viability of the spousal communication privilege in New Mexico

a. Evidentiary privileges and this Court's authority over them

{9} This Court's constitutional authority to recognize or limit evidentiary privileges derives from the power of superintending control set forth in Article III, Section 1 and Article VI, Section 3 of the New Mexico Constitution. See Estate of Romero ex rel. Romero v. City of Santa Fe , 2006-NMSC-028, ¶ 7, 139 N.M. 671, 137 P.3d 611. This Court determines whether and to what extent an evidentiary privilege should be permitted

482 P.3d 705

to "interfere with the orderly and effective administration of justice." See Ammerman v. Hubbard Broad., Inc. , 1976-NMSC-031, ¶¶ 7, 17, 89 N.M. 307, 551 P.2d 1354 (internal quotation marks and citation omitted). For this reason, the existence of NMSA 1978, Section 38-6-6 (1973) has little bearing upon whether New Mexico courts should continue to recognize the spousal communication privilege. This question is one bearing upon practice and procedure and, therefore, is one over which this Court has ultimate authority. See Albuquerque Rape Crisis Ctr. v. Blackmer , 2005-NMSC-032, ¶ 11, 138 N.M. 398, 120 P.3d 820 ("[I]f a privilege is not recognized or required by the New Mexico Constitution or court rule, then the Legislature may not enact such a privilege because to do so would conflict with Rule 11-501."); see also Ammerman , 1976-NMSC-031, ¶ 15, 89 N.M. 307, 551 P.2d 1354 ("Our constitutional power ... of superintending control over all inferior courts carries with it the inherent power to regulate all pleading, practice and procedure affecting the judicial branch of government." (internal quotation marks and citation omitted)). Whether our courts should continue to recognize any given privilege requires a balancing of competing concerns of the broadest kind.

{10} The administration of justice is coextensive with the pursuit of truth, and but for certain well-defined exceptions, all persons can be compelled to appear in court and give testimony to accomplish this end. See Elkins v. United States , 364 U.S. 206, 234, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) (Frankfurter, J., dissenting). ("[T]he underlying aim of judicial inquiry is ascertainable truth[.]"). Limitations on this fundamental rule shall be recognized "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence" produces a "public good" that transcends "the normally predominant principle of utilizing all rational means for ascertaining truth." Id.

{11} Similarly, "[t]he purpose of the rules of evidence is to ascertain the truth by determining what evidence is admissible during the trial." Pincheira v. Allstate Ins. Co. , 2008-NMSC-049, ¶ 21, 144 N.M. 601, 190 P.3d 322. Consistent with this purpose, all persons generally are required to "disclose any information" that they "may possess that is relevant to a case pending before a court of justice." Estate of Romero , 2006-NMSC-028, ¶ 7, 139 N.M. 671, 137 P.3d 611 (internal quotation marks and citation omitted). An evidentiary privilege constitutes an exception to this general rule and permits a person to withhold probative evidence. See id.

{12} Evidentiary privileges " ‘are not lightly created nor expansively construed’ " because " ‘they are in derogation of the search for truth.’ " Albuquerque Rape Crisis Ctr. , 2005-NMSC-032, ¶ 18, 138 N.M. 398, 120 P.3d 820 (quoting United States v. Nixon , 418 U.S. 683, 709-10, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) ). We thus consider whether the spousal communication privilege promotes "sufficiently important interests to outweigh the need for probative evidence." See Trammel v....

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2 books & journal articles
  • Table of cases
    • United States
    • James Publishing Practical Law Books Deposition Objections
    • March 31, 2021
    ...§20:04 State v. Foster , 674 So.2d 747 (Fla. App. 1996), §24:13 State v. Gano , 988 P.2d 1153 (Hawaii 1999), §11:31 State v. Gutierrez , 482 P.3d 700 (N.M. 2019), §8:10 State v. Howell , 596 P.2d 277 (N.M. App. 1979), §8:21 State v. LaRoche, 442 A.2d 602 (N.H. 1982), §9:14 State v. Marcham ......
  • Family communications privileges
    • United States
    • James Publishing Practical Law Books Deposition Objections
    • March 31, 2021
    ...the privilege to preserve. At least one state has seriously considered abolishing spousal privileges altogether. See State v. Gutierrez , 482 P.3d 700 (N.M. 2019) (provisionally abolishing privileges), on reh’g , (Nov. 5, 2020) (reinstating privileges and referring matter to a committee for......

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