State v. Johnson

• Decision Date: 23 March 2010
• Docket Number: No. 29,664.,29
• Citation: 229 P.3d 523
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Tracy Alvin JOHNSON, Defendant-Appellant.
• Court: New Mexico Supreme Court

229 P.3d 523
2010-NMSC-016

2010-NMSC-016

STATE of New Mexico, Plaintiff-Appellee,
v.
Tracy Alvin JOHNSON, Defendant-Appellant.

No. 29,664.

Supreme Court of New Mexico.

March 23, 2010.

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Law Works, L.L.C., John A. McCall, Albuquerque, NM, for Appellant.

Gary K. King, Attorney General, Francine Ann Baca-Chavez, Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

SERNA, Justice.

I. INTRODUCTION

{1} This is Defendant Tracy Johnson's second direct capital appeal to the New Mexico Supreme Court, following his third trial for the murder of two individuals in Carlsbad in late 2000. Now, almost a decade after the crimes were committed, we affirm Defendant's convictions and sentences for two counts of first degree murder, one count of armed robbery, one count of conspiracy to commit armed robbery, and one count of possession of a firearm by a felon.

II. BACKGROUND

{2} We described the crimes with which Defendant was charged in our previous opinion in this case:

The two victims Anthony Granado and Ronnie Lujan were beaten, robbed, and killed inside a residence belonging to one of them. One victim had been shot three times—once in the head, once in the chest, and once in the back—and had been struck in the head by a hard, curved object, consistent with a tire iron. The other victim had been shot twice—once in the head and once in the chest—and had also been struck in the head by a hard, curved object. A ballistics expert testified that all five bullets were fired from the same firearm. However, neither the murder weapon nor any of the items stolen from the house were ever recovered.

State v. Johnson, 2004-NMSC-029, ¶ 3, 136 N.M. 348, 98 P.3d 998.

{3} Defendant was tried by jury and found guilty on the same charges he appeals now, as well as evidence tampering. On appeal, this Court affirmed his conviction for evidence tampering, but reversed all of his other convictions on the grounds that the admission of a certain statement was not harmless error under the United States Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and remanded for retrial. 2004-NMSC-029, ¶ 2, 136 N.M. 348, 98 P.3d 998. Defendant's second trial ended in a mistrial. Defendant was tried a third time, found guilty on all charges, and sentenced to a total of 67 years in prison.

III. DISCUSSION

{4} Defendant raised sixteen issues in this appeal, and we address each in turn.

A. Admission of Recorded Jail Phone Calls

1. Factual and Procedural History

{5} While being held in the Eddy County Detention Center ("Detention Center") awaiting his second trial, Defendant made multiple telephone calls, which were recorded because the Detention Center digitally records all calls placed by inmates for security purposes. When a call is placed, a digital message informs both parties to the call that it may be recorded and monitored, stating, "This call is from a correctional institution and is subject to monitoring and recording." The Detention Center interprets the decision of both parties to the call to continue talking after hearing the recorded message as their consent to the recording.

{6} While in the Detention Center, Defendant placed two calls to Thomas Martinez ("Martinez") and one to Cynthia Flores ("Flores"), requesting that Martinez be present at Defendant's trial and that Flores ask another individual to be present at the trial, ostensibly to influence the testimony of the State's witnesses. In a motion in limine, the State argued that the calls to Martinez and Flores were evidence that Defendant was engaging in witness intimidation to prevent certain witnesses from testifying about the true nature of Defendant's role in the crimes. The court granted the State's motion in limine,

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permitting recordings of the conversations to be played at trial, and admitting Defendant's statements as admissions of a party opponent and those of Martinez and Flores as non-hearsay statements made in furtherance of a conspiracy.¹ A portion of one call to Martinez was admitted as an adoptive admission of Defendant.

{7} Defendant argues that the calls were recorded in violation of his rights under the New Mexico Abuse of Privacy Act and the United States and New Mexico Constitutions and were improperly admitted at trial.

2. Standard of Review

{8} Our review of the admission of the telephone calls involves a mixed question of law and fact and is reviewed de novo. State v. Templeton, 2007-NMCA-108, ¶ 8, 142 N.M. 369, 165 P.3d 1145.

3. Abuse of Privacy Act

{9} Defendant argues that the phone calls in question were recorded in violation of Section 30-12-1 of the Abuse of Privacy Act ("Act"), NMSA 1978, §§ 30-12-1 to -11 (1963, as amended through 1979), which prohibits the knowing interference of communication without lawful authority by "reading, interrupting, taking or copying any message, communication or report intended for another by telegraph or telephone without the consent of a sender or intended recipient thereof ." Section 30-12-1(C). An exception is provided when "one of the parties to the communication has given prior consent to such interception, monitoring or recording of such communication." Section 30-12-1(E)(3).

{10} Two Court of Appeals opinions have addressed this question and held that the Act is not violated when a prisoner impliedly consents to the recording of calls placed from jail. In State v. Coyazo, 1997-NMCA-029, 123 N.M. 200, 936 P.2d 882, cert. denied, 123 N.M. 168, 936 P.2d 337 (1997), the defendant was in jail awaiting trial on first degree murder charges when he placed a call on the jail phone, next to which was a sign stating that all calls were subject to monitoring and recording. The Court of Appeals consulted case law discussing the analogous federal statute, 18 U.S.C. § 2511, to conclude the defendant's consent to the recording could be shown by circumstantial evidence, namely, the sign next to the phone stating that the call was subject to recording. Coyazo, 1997-NMCA-029, ¶¶ 10, 13, 16, 123 N.M. 200, 936 P.2d 882. In Templeton, the Court of Appeals affirmed the Coyazo application of the exception in the Act to calls made in jail. The Court reiterated that consent may be implied where adequate notice has been given an inmate that phone calls are subject to recording. 2007-NMCA-108, ¶ 15, 142 N.M. 369, 165 P.3d 1145 (stating that "adequate notice" includes "signs near telephones indicating that calls may be monitored, information in orientation or prison handbooks provided to inmates, forms signed by inmates consenting to monitoring procedures, and recordings on telephones that indicate the monitoring policy prior to the placing of a call"). The Court found that the recording of a call placed from the booking area, where no notice was given that calls could be recorded, violated the Act. Id. ¶ 16. However, the Templeton Court concluded that a call placed from inside the jail, where there were signs next to the phone stating that the call would be recorded and an automated recording informed the caller that the call was being recorded before the number dialed was connected, did not violate the Act because the defendant had consented to the recording by placing the call with the knowledge that it would be recorded. Id. ¶¶ 23-24.

{11} Defendant's briefs do not attempt to distinguish Coyazo and Templeton and do nothing more than reference arguments made in response to the State's motion in limine, which is an unacceptable appellate practice. See Rule 12-213(A)(4) NMRA. We agree with the Court of Appeals' analyses in Coyazo and Templeton concluding that the Act is not violated when phone calls placed from jail are recorded after the caller has been given notice that such will occur. Defendant

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impliedly provided prior consent to the recording of his calls by placing the calls with the knowledge that they were subject to recording and monitoring; indeed, we may say that Martinez and Flores also consented to the recording of the phone calls by accepting the calls after hearing the recording. The consent exception to the Act, Section 30-12-1(E)(3), applies to phone calls placed from jail when one or both parties impliedly consents, and thus Defendant's rights under the Act were not violated.

4. United States Constitution: Amendments Four, Five, and Six

{12} Defendant also claims that the recording of the phone calls violated his rights under the Fourth, Fifth, and Sixth Amendments of the United States Constitution. These claims are meritless.

{13} The Fourth Amendment protects against unreasonable searches and seizures. See Burdeau v. McDowell, 256 U.S. 465, 474-75, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). While the United States Supreme Court has not decided whether the monitoring and recording of prison phone calls violates the Fourth Amendment, the federal Circuit Courts which have addressed this question under the federal wiretapping statute, 18 U.S.C. § 2511, have found that it does not. Like the New Mexico Abuse of Privacy Act, the federal wiretapping statute contains an exception that permits recording when consent has been obtained. Compare NMSA 1978, § 30-12-1(E)(3) with 18 U.S.C. § 2511(2)(c). Federal courts have found implied consent under the wiretapping statute when jails notify inmates by sign or recording that their calls are being monitored, and thus there exists no reasonable expectation of privacy in the phone call that would result in a Fourth Amendment violation. See, e.g., United States v. Verdin-Garcia, 516 F.3d 884, 894 (10th Cir.2008) (finding implied consent to recording based on circumstantial evidence that the defendant knew calls from jail phones were recorded); United States v. Workman, 80 F.3d 688, 693-94 (2d Cir.1996) (consent implied...