State v. Largo

• Decision Date: 21 May 2012
• Docket Number: No. 32,055.,32,055.
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Harrison LARGO, Defendant–Appellant.
• Court: New Mexico Supreme Court

278 P.3d 532

2012 -NMSC- 015

STATE of New Mexico, Plaintiff–Appellee,

v.Harrison LARGO, Defendant–Appellant.

No. 32,055.

Supreme Court of New Mexico.

May 21, 2012.

Jacqueline L. Cooper, Chief Public Defender, William A. O'Connell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Gary K. King, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

MAES, Chief Justice.

{1} In this case we apply the context-specific inquiry established by the United States Supreme Court in Michigan v. Bryant, 562 U.S. ––––, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011), to evaluate whether an out-of-court statement is testimonial. Defendant Harrison Largo's main issues concern the admission into evidence of Victim Freida Smith's out-of-court statements: portions of the 911 tape in which Victim communicated to the 911 operator that Defendant shot her, and a sheriff's deputy's testimony that Victim identified Defendant as her shooter. For the reasons that follow, we affirm Defendant's convictions.

FACTS AND PROCEDURAL HISTORY

{2} Defendant and Victim had been in an on-again, off-again relationship for twenty years, during which they had two children. On the morning of May 20, 2008, Defendant, still drunk from the day before, showed up at Victim's trailer. Victim let him inside and Defendant told Victim that he wanted to reconcile their relationship. Victim told Defendant she was not open to reconciliation. The two then went outside the trailer where an altercation ensued, and Defendant shot Victim, who later died of her gunshot wounds.

{3} Victim's neighbor, Stevic Jim (Stevic), witnessed the altercation and the shooting from his home. After Defendant drove away, Stevic went outside to help Victim, who was lying on the ground bleeding, while his mother, Shirleen Jim (Shirleen), called 911. Shirleen then gave the phone to Stevic and the 911 operator asked who shot Victim. With Stevic acting as a relay, Victim told the 911 operator that it was Defendant.

{4} Victim was still lying on the ground bleeding when McKinley County Sheriff's Deputy Ed Marble (Deputy Marble) arrived. Victim also told Deputy Marble that Defendant shot her. Significantly, she also told the deputy that Defendant “was headed to the school to shoot the kids.” Thoreau High School was subsequently locked down.

{5} Victim was transported to a hospital in Albuquerque, where she died around six hours after being shot. Defendant was charged with one count of deliberate first-degree murder, contrary to NMSA 1978, Section 30–2–1(A) (1994), and one count of tampering with evidence, contrary to NMSA 1978, Section 30–22–5 (2003).

{6} At trial, the district court admitted Victim's out-of-court statements in two forms. First, the district court admitted into evidence portions of the 911 tape where Victim communicated to the 911 operator, through Stevic, that Defendant had shot her. Second, the district court allowed Deputy Marble to testify regarding Victim's out-of-court statement in which she identified Defendantas her shooter. Deputy Marble testified: “I asked [Victim], ‘What happened?’ and she said, ‘Harrison shot me.’ ” The district court ruled that any evidence regarding Victim's fear that Defendant was headed to Thoreau High School, however, was too prejudicial, and therefore was not presented at trial.

{7} Defendant was convicted of both counts and was given a life sentence for the murder count and three years for the tampering with evidence count. Defendant appeals his conviction directly to this Court. See N.M. Const. art. VI, § 2; see alsoRule 12–102(A)(1) NMRA (providing that an appeal from a sentence of life imprisonment is taken directly to the Supreme Court).

{8} Defendant raises three issues on appeal: (1) whether Victim's out-of-court statements identifying Defendant as her assailant were testimonial in nature, thereby violating Defendant's confrontation rights under the federal constitution; (2) whether Victim's out-of-court statements identifying Defendant as her assailant were inadmissible hearsay; and (3) whether there was sufficient evidence to support a conviction for deliberate first-degree murder.

DISCUSSIONI. Defendant's confrontation rights were not violated by the admission of Victim's out-of-court statements identifying Defendant as her shooter because the statements were nontestimonial.

{9} The question whether out-of-court statements are admissible under the Confrontation Clause is a question of law, subject to de novo review. State v. Aragon, 2010–NMSC–008, ¶ 6, 147 N.M. 474, 225 P.3d 1280. The Confrontation Clause of the Sixth Amendment ensures that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI; see N.M. Const. art. II, § 14. The Confrontation Clause bars “[o]ut-of-court testimonial statements ... unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness....” State v. Zamarripa, 2009–NMSC–001, ¶ 23, 145 N.M. 402, 199 P.3d 846 (emphasis added) (citing Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). In Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the United States Supreme Court clarified the rule it laid down in Crawford, regarding when statements are testimonial, and provided:

[S]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to [a] later criminal prosecution.

Davis, 547 U.S. at 822, 126 S.Ct. 2266.

{10} Defendant asserts that Victim's out-of-court statements were testimonial in nature and therefore inadmissible. In response, the State argues that, because Victim's out-of-court statements identifying Defendant as her shooter had a primary purpose of addressing an ongoing emergency, their admission into evidence did not violate Defendant's confrontation rights. Because there is no dispute that Defendant did not have a prior opportunity to cross-examine Victim, this dispute centers on whether her out-of-court statements were testimonial.

{11} More recently in Bryant, the Supreme Court addressed whether statements made by a shooting victim to police while he was lying on the ground in severe distress waiting for medical attention were testimonial and should be barred from use at trial by the Confrontation Clause. In Bryant, police responded to a 911 call reporting that a man had been shot. 131 S.Ct. at 1150. When police arrived at the scene they found the victim with a gunshot wound in his abdomen, in great pain, and speaking with much difficulty. Id. The “police asked [the victim] ‘what happened, who had shot him, and where the shooting had occurred.’ ” Id. The victim responded by identifying his shooter and explaining that he had been shot at another location before driving to the gas station for help. Id. The victim's conversation with police lasted approximately five to ten minutes. Id. The victim was transported to a nearby hospital where he later died. Id.

{12} In Bryant, the Court reaffirmed that “the basic objective of the Confrontation Clause ... is to prevent the accused from being deprived of the opportunity to cross-examine the declarant about statements taken for use at trial.” Id. at 1155 (emphasis added). The Court concluded that “when a court must determine whether the Confrontation Clause bars the admission of a statement at trial, it should determine the ‘primary purpose of the interrogation’ by objectively evaluating the statements and actions of the parties to the encounter, in light of the circumstances in which the interrogation occurs.” Id. at 1162 (quoting Davis, 547 U.S. at 814, 126 S.Ct. 2266);accord People v. Blacksher, 52 Cal.4th 769, 130 Cal.Rptr.3d 191, 259 P.3d 370, 408 (2011). While the Court acknowledged that there may be other circumstances “when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony,” Bryant, 131 S.Ct. at 1155, “[t]he existence of an emergency or the parties' perception that an emergency is ongoing is among the most important circumstances that courts must take into account.” Id. at 1162;see also Blacksher, 130 Cal.Rptr.3d 191, 259 P.3d at 408. Accordingly, the Court first looked to the circumstances surrounding the interrogation to determine if there was an ongoing emergency, then viewed the conduct of the interrogators and the declarant in light of that determination. See Bryant, 131 S.Ct. at 1163–66. This is a “highly context-dependent inquiry,” id. at 1158;accord Blacksher, 130 Cal.Rptr.3d 191, 259 P.3d at 409, and requires courts to objectively evaluate all of the circumstances surrounding the interrogation, as well as the statements and actions of the parties to the encounter, see Bryant, 131 S.Ct. at 1162.

{13} In Bryant, the Court looked to the type and scope of the danger posed to the victim, to the public, and the police to determine the existence of an ongoing emergency. Id. The Court noted that “[n]othing ... said to the police indicated that the cause of the shooting was a purely private dispute or that the threat from the shooter had ended,” indicating that the scope of the danger to the general public could be high. Id. at 1163. The record did not reveal much about the motive of the shooter, leaving police to wonder about the scope of the danger to the public. Id. In addition, the fact that a gun was used further increased the scope of the danger, not only to the victim, but to the police and the general public as well. Id. at 1164. The Court noted that a slight physical...