State v. Henderson

• Citation: 136 P.3d 1005,2006 NMCA 059
• Decision Date: 14 February 2006
• Docket Number: No. 24,850.,24,850.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Calupp HENDERSON, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

136 P.3d 1005

2006 NMCA 059

STATE of New Mexico, Plaintiff-Appellee, v. Calupp HENDERSON, Defendant-Appellant.

No. 24,850.

Court of Appeals of New Mexico.

February 14, 2006.

Certiorari Denied, No. 29,702, May 25, 2006.

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

John Bigelow, Chief Public Defender, Sheila Lewis, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

VIGIL, Judge.

{1} This case requires us to determine whether the admission of preliminary hearing testimony of an unavailable witness at Defendant's trial violated the Confrontation Clause of the Sixth Amendment under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and whether Defendant was entitled to a mistrial when a witness invoked his Fifth Amendment privilege before the jury during his testimony. We hold that Defendant was afforded his Confrontation Clause rights and that no abuse of discretion was committed in denying his motion for a mistrial. The remaining issues raised by Defendant were abandoned. State v. Aragon, 109 N.M. 632, 634, 788 P.2d 932, 934 (Ct.App.1990) ("All issues raised in the docketing statement but not argued in the briefs have been abandoned."). We therefore affirm.

BACKGROUND

{2} Officer Donald Jackson and Detective Walter Coburn of the Hobbs Police Department were dispatched to the home of Tarious Ford to investigate a robbery call in which Ford and a guest, Tracy Eagans, were the alleged victims. As a result of their investigation, a criminal complaint was filed in the magistrate court charging Defendant with aggravated burglary, armed robbery, and conspiracy to commit armed robbery. Defendant was arrested and counsel was appointed to represent him. The same attorney continued to represent Defendant throughout the case.

{3} A preliminary hearing was then held in the magistrate court at which Ford and Eagans testified about the incident at Ford's home. Their testimony was under oath and it was tape recorded. Defendant was present during the entire hearing and his attorney cross-examined both witnesses about their testimony without any limitations being imposed by the magistrate judge on the scope or content of the cross-examination. At the conclusion of the preliminary hearing the magistrate judge made a finding of probable cause and Defendant was bound over for trial in district court on all charges.

{4} At trial the evidence was as follows. Officer Jackson and Detective Coburn were dispatched to a robbery complaint at Ford's home. Eagans, a friend who was visiting Ford, told the officers that a mutual acquaintance of theirs, Fabian Marshall, entered Ford's home without knocking as was his custom. Three other men, Chuck Green, Keylie Martin, and Defendant followed Marshall into Ford's home. Once inside, Martin used a gun and Green a screwdriver to force Eagans and Marshall to remove their clothing. In the meantime, Defendant hit Ford on the shoulder with a gun and forced him to lie down on the floor. The three men then took Ford's pager, at least one of his girlfriend's cellular telephones, an X Box video game player and $547 in cash belonging to Eagans and left. After the police officers arrived, Ford's telephone rang and his caller identification showed that the call originated from his girlfriend's stolen cellular telephone. Ford recognized the caller as Defendant. Ford held the receiver away from his ear to allow Detective Coburn to hear, and Coburn heard the caller inform Ford that he took the items from Ford's home because someone owed him $400. Detective Coburn listened to a second call a few minutes later in the same manner in which the caller said that if Ford gave him $400 he would return the stolen property.

{5} Defendant rested without presenting any evidence on his own behalf. In closing arguments, he asked the jury to disregard Ford's testimony entirely because he was not able to confront him on all the issues. He also argued that the elusiveness and reluctance of the victim witnesses Eagans and Marshall to testify made them unbelievable. Defendant was convicted of all the charges.

DISCUSSION

ADMISSION OF THE PRELIMINARY HEARING TESTIMONY UNDER CRAWFORD

{6} Defendant's argument that Ford's preliminary hearing testimony was admitted in violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution under Crawford presents a question of law which we review de novo. State v. Dedman, 2004-NMSC-037, ¶ 23, 136 N.M. 561, 102 P.3d 628.

{7} Prior to trial the State filed a motion to admit into evidence the tapes of the preliminary hearing testimony of Ford and Eagans pursuant to Rule 11-804(B)(1) NMRA as the testimony of unavailable witnesses. Following two evidentiary hearings in which the State demonstrated its extensive efforts to attempt locating and producing Ford and Eagans to testify at trial, the trial court granted the motion. In doing so, the trial court acknowledged that Defendant could not have cross-examined them at the preliminary hearing on all issues that were relevant to his defense because all the issues were not known at that time. Admission of the testimony was not unqualified. The trial court ruled that Defendant would be able to argue to the jury that these witnesses were not credible because when they could not be located, the charges against the co-defendants Keylie Martin and Chuck Green were dismissed. Nevertheless, Defendant objected, arguing that admitting the preliminary hearing tapes at trial would violate his constitutional right to confront the witnesses against him. Eagans was ultimately located and subpoenaed to testify at the trial, so only Ford's preliminary hearing testimony was admitted.

{8} We first determine whether the preliminary hearing testimony was properly admitted under the Rules of Evidence because if the hearsay testimony was improperly admitted to Defendant's prejudice, we are not required to decide the Crawford constitutional issue. The admissibility of evidence as an exception to the hearsay rule is separate from the objection based on confrontation grounds, and its admission is reviewed for an abuse of discretion. Dedman, 2004-NMSC-037, ¶ 23, 136 N.M. 561, 102 P.3d 628.

{9} The admissibility of hearsay testimony of an "unavailable" witness who testifies in a preliminary hearing is governed by Rule 11-804(B)(1). Ford satisfies the definition of an "unavailable" witness because the State was unable to procure his attendance at the trial. See Rule 11-804(A)(5) (defining "[u]navailability as a witness" in part to mean "the proponent of a statement has been unable to procure the declarant's attendance . . . by process or other reasonable means"). Rule 11-804(B)(1) provides, "[t]estimony given as a witness at another hearing of the same or a different proceeding or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination[,]" is not excluded by the hearsay rule. (Emphasis added.) We must therefore determine whether Defendant had an "opportunity and similar motive" to develop Ford's testimony at the preliminary hearing as contemplated by the Rule.

{10} In State v. Massengill, 99 N.M. 283, 657 P.2d 139 (Ct.App.1983), the defendant argued that the preliminary hearing testimony of an unavailable witness was erroneously admitted, contending he did not have the same motive to cross-examine the witness at trial as at the preliminary hearing. Id. at 284, 657 P.2d at 140. His argument was rejected on the rationale that the defendant had an opportunity and motive to develop the testimony given by the witness at the preliminary hearing concerning whether a crime had been committed and whether the defendant committed the crime. His motive to develop the testimony at trial was similar—to ask questions concerning the commission of a crime and the defendant's involvement. Id. at 285, 657 P.2d at 141. Further, the fact that the defendant chose not to further cross-examine the witness was a matter of tactics, not motive. Id. In coming to this conclusion the court emphasized that a defendant has a due process right to be allowed to call whatever witnesses he desires in his own defense at a preliminary hearing, that the Rules of Evidence are applicable in a preliminary hearing, and that witnesses may be cross-examined and their credibility and character tested. Id. at 284-85, 657 P.2d at 140-41.

{11} The Massengill reasoning was subsequently approved by our Supreme Court in State v. Gonzales, 113 N.M. 221, 226, 824 P.2d 1023, 1028 (1992). However, Gonzales also recognized that "if the circumstances and facts of a particular case indicate that there was a real difference in motive or other limitation on meaningful cross-examination, the [prior] testimony should not be admitted." Id. Examples cited were where defense counsel had no motive to cross-examine a witness at the first trial because of an agreement with the prosecutor that a judgment of not guilty by reason of insanity would be entered, the witness later died, and his recorded testimony was then admitted at a second trial (State v. Slayton, 90 N.M. 447, 564 P.2d 1329 (Ct.App.1977)); where defendant was not represented by counsel at the preliminary hearing (Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)); where objections of the prosecution that were sustained effectively limited the defendant in the scope and nature of his cross-examination (State v. Magouirk, 539 So.2d 50 (La.Ct.App.1988), withdrawn in part, 561 So.2d 801 (La.Ct.App.1990)); and where the testimony from an earlier trial of a co-defendant was determined not admissible because the motive to develop the testimony as to the...