State v. Johnson

• Decision Date: 20 August 2004
• Docket Number: No. 27,535.,27,535.
• Citation: 98 P.3d 998,136 N.M. 348,2004 NMSC 29
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Tracy JOHNSON, Defendant-Appellant.
• Court: New Mexico Supreme Court

98 P.3d 998

136 N.M. 348

2004 NMSC 29

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

No. 27,535.

Supreme Court of New Mexico.

August 20, 2004.

Rehearing Denied September 24, 2004.

John A. McCall Albuquerque, NM, for Appellant.

Patricia A. Madrid, Attorney General, Steven S. Suttle, Assistant Attorney General, Albuquerque, NM, for Appellee.

OPINION

CHAVEZ, Justice.

{1} A jury convicted Defendant Tracy Johnson of two counts of first-degree felony murder, contrary to NMSA 1978, § 30-2-1(A)(2) (1994); armed robbery, contrary to NMSA 1978, § 30-16-2 (1973); conspiracy to commit armed robbery, contrary to NMSA 1978, § 30-28-2 (1979) and Section 30-16-2; possession of a firearm by a felon, contrary to NMSA 1978, § 30-7-16(A) (2001); and tampering with evidence, contrary to NMSA 1978, § 30-22-5 (1963, prior to 2003 amendment). We review Defendant's convictions pursuant to Article VI, Section 2 of the New Mexico Constitution and Rule 12-102(A)(1) NMRA 2004.

{2} Defendant argues the trial court violated his right to confront the witnesses against him when it admitted a tape recording of an unavailable accomplice's custodial police interview, and that such error was not harmless beyond a reasonable doubt. Since Defendant filed this appeal, the United States Supreme Court decided Crawford v. Washington, ___ U.S. ___, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which held that out-of-court "testimonial" statements are inadmissible against a criminal defendant absent a showing of both "unavailability and a prior opportunity for cross-examination." Id. at 1374. The State concedes the recording at issue in this case was admitted in violation of Defendant's Sixth Amendment right of confrontation under Crawford. Although the State acknowledges this case "presents an extremely close call on the issue of harmless error," the State asks that we decide this close case in its favor, on the basis that the improper admission of the accomplice statement was harmless beyond a reasonable doubt. However, because the accomplice's inadmissible statement provided key evidence directly inculpating Defendant, and the remaining circumstantial evidence against him, although strong, was disputed, we conclude the error was not harmless with respect to all convictions except the conviction of tampering with evidence. Accordingly, we reverse Defendant's convictions of felony murder, armed robbery, conspiracy to commit armed robbery, and felon in possession of a firearm, and we affirm Defendant's conviction of tampering with evidence.

I. Background

{3} The two victims 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.

{4} It was undisputed at trial that on the evening of the killings, Defendant, along with acquaintances Jamall Young ("Young"), Coley Ingram ("Coley"), and Jeff Hoff ("Hoff"), returned to the victim's house to purchase cocaine, where they had made a drug purchase earlier in the day with Coley's brother, Wayne Ingram ("Wayne"). During this second drug transaction but prior to the commencement of the robbery, Defendant and Coley went by themselves into a bathroom, leaving Hoff and Young in the bedroom with the two victims. What occurred after these events is disputed, and the State's theory is significantly different from Defendant's.

{5} The State argued that, while in the bathroom, Defendant and Coley formed a conspiracy to commit armed robbery, then used a firearm and a tire iron to rob and murder the two victims. Defendant's theory at trial, directly supported by his own testimony, was that while in the bathroom he not only rejected Coley's proposal to rob the victims, but believed he had talked Coley out of committing a robbery. Further, Defendant claimed that once the robbery commenced, he tried to stop Coley from committing the robbery by urging him to put away the firearm.

{6} Over Defendant's objections at trial, the State introduced the tape-recorded police interview of Young. Young did not testify at trial, nor did Defendant at any time have an opportunity to cross-examine Young on his statement. In the portion of the statement that was played for the jury, Young provided the only direct evidence that Defendant wielded a weapon or participated as an accomplice in the crimes. Further, Young's statement provided the only direct evidence that Defendant himself stole property from the victims.

II. Young's Custodial Statement

A. Application of Crawford

{7} The State does not dispute that the tape recording of Young's police interview was admitted in violation of Defendant's Sixth Amendment right of confrontation under Crawford, which held that out-of-court "testimonial" statements are inadmissible unless there has been a showing of "unavailability and a prior opportunity for cross-examination." ___ U.S. at ___, 124 S.Ct. at 1374. The Supreme Court did not decide, however, the full scope of the term, "testimonial":

We leave for another day any effort to spell out a comprehensive definition of "testimonial." Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.

Id. (footnote omitted and emphasis added). Because Young's custodial interview falls squarely within the class of "testimonial" evidence under Crawford, ___ U.S. at ___, 124 S.Ct. at 1365, we need not in this case attempt to delineate more fully the scope of that term. We simply hold that, under Crawford, because Defendant did not have an opportunity to cross-examine Young, the admission of Young's statement constituted a per se violation of Defendant's Sixth Amendment right of confrontation. We must address, therefore, whether the violation was harmless in this case.

B. Principles of constitutional harmless error

{8} Except in cases involving "structural" errors, which are subject to per se reversal, we are bound to apply the harmless-error analysis outlined in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), to federal constitutional errors. See Neder v. United States, 527 U.S. 1, 7-8, 15-16, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). In order to conclude a non-structural constitutional error does not require reversal, we must conclude the error was "harmless beyond a reasonable doubt." Chapman, 386 U.S. at 24, 87 S.Ct. 824. Underlying the Chapman analysis is the acknowledgment "that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction." Id. at 22, 87 S.Ct. 824. Thus, the United States Supreme Court in Chapman fashioned a rule that would balance the Court's inherent interest in vindicating federal constitutional guarantees against the utility of blocking the traditional practice of automatically "setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial." Id.

{9} The Court has articulated the constitutional harmless-error standard variously since Chapman was decided, but the central focus of the Chapman inquiry has always been "whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." Id. at 23, 87 S.Ct. 824 (quotation marks and quoted authority omitted). Stated differently, in the context of an essential element that was not presented to the jury, the reviewing court must be able to "conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error[.]" Neder, 527 U.S. at 19, 119 S.Ct. 1827; see Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) ("The inquiry ... is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error."). Once the constitutional error has been established, the burden is on the State to demonstrate the error is harmless beyond a reasonable doubt. See Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

{10} In conducting this inquiry, the reviewing court must ever bear in mind that criminal defendants have a constitutional right to have a jury, not appellate court judges on review, decide guilt or innocence. See Sullivan, 508 U.S. at 279, 113 S.Ct. 2078 ("[T]o hypothesize a guilty verdict that was never in fact rendered—no matter how inescapable the findings to support that verdict might be—would violate the jury-trial guarantee."); cf. Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (noting that harmless-error review does not apply where the judge directs a verdict, because "the wrong entity judged the defendant guilty"). Therefore, it is imperative that a reviewing court be guided not by its own assessment of the guilt or innocence of the defendant—a matter which is irrelevant to the question whether the constitutional error might have contributed to the jury's verdict—but rather by an objective reconstruction of the record of evidence the jury either heard or should have heard absent the error and a careful examination of the error's...