State v. Lea
| Docket Number | A-1-CA-39585 |
| Decision Date | 29 June 2023 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellant, v. ERIK LEA, Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Courtney Weaks District Court Judge
Raúl Torrez, Attorney General Laurie Blevins Assistant Attorney General Santa Fe, NM for Appellant
Bennett J. Baur, Chief Public Defender Santa Fe, NM Mark A. Perlata-Silva, Assistant Appellate Defender Albuquerque, NM for Appellee
{¶1} In this interlocutory appeal, the State challenges the district court's grant of a motion to suppress DNA evidence collected by a sexual assault nurse examiner (SANE) who passed away between the time of examination and testing. We first addressed this topic, regarding the same deceased SANE, in State v. Carmona, 2016-NMCA-050, ¶ 13, 371 P.3d 1056, cert. denied, S-1-SC-35851 , in which, guided by our New Mexico Supreme Court's holding in State v. Navarette, 2013-NMSC-003, 294 P.3d 435, this Court held that "the Confrontation Clause prohibits the admission of DNA evidence collected by an unavailable SANE and any expert testimony based thereon when the primary purpose animating the SANE's collection of such evidence is to assist in the prosecution of an individual identified at the time of the collection." Carmona, 2016-NMCA-050, ¶ 13, 371 P.3d 1056 (emphasis added). Applying Carmona, the district court suppressed the DNA evidence on Confrontation Clause grounds. The State appeals, arguing that Carmona does not control this case because the perpetrator was unknown at the time of the SANE exam. The State further contends the evidence was gathered during an ongoing emergency and thus excluded from the right of confrontation. Still guided primarily by Navarette, we hold there to be no constitutional distinction between the contemporaneous statements made by a SANE nurse collecting DNA evidence from an assault victim of an unidentified rapist versus those made when the rapist's identity is known. As such, the right to confront applies to those statements. Concluding as well that the evidence gathered herein reflects the product of investigative steps and not the sort of law enforcement action that our jurisprudence characterizes to be the product of an ongoing emergency, we affirm.
{¶2} Defendant was indicted on one count of kidnapping and two counts of criminal sexual penetration against M.F. (Victim). The State alleges that in June 2006, Victim was attempting to get into her car when a man that she did not know pushed her in and got into the back seat of the vehicle. The unknown man forced her to drive to a more secluded location, then sodomized her. Although the man threated to kill Victim if she went to the police, she quickly reported the attack and underwent a SANE examination at the Albuquerque SANE Collaborative. A rape kit was collected during the exam, including swabs potentially containing DNA material from the rapist. The rape kit was processed in 2017-eleven years after the attack- and identified Defendant as the DNA match for the unknown rapist. During the intervening decade, the SANE nurse that conducted the examination, Lydia Vandiver, died.
{¶3} Upon indictment, the State asked the district court for a pretrial ruling on the use of SANE Vandiver's statements in the test kit, which included Vandiver's affirmative statements on the packaging that the contents were collected from Victim shortly after the assault. The State concedes that SANE Vandiver's act of placing the swabs in a labeled collection bag constituted her affirmative statement for purposes of hearsay. See Rule 11-801(A) NMRA (). The State argued, however, that neither the United States Constitution's Confrontation Clause nor our decision in Carmona precluded admission of SANE Vandiver's hearsay statements in this instance. See U.S. Const. amend. VI; Carmona, 2016-NMCA-050.
{¶4} The district court held a hearing on the motion, where the State called as a witness the former executive director of the Albuquerque SANE Cooperative. She was the executive director during the time of Victim's exam in 2006, though she did not participate in the exam itself. The executive director testified that her duties included transferring "evidence that the nurses collected to the Albuquerque Police Department Crime Lab." Once collected, the executive director described how materials collected during exams were stored in locked "evidence lockers." With the materials from Victim's exam, the executive director described SANE Vandiver's signature on the "chain of custody." Both the prosecutor and the executive director referred to the documentation on bags of collected material as an "evidence tag."
{¶5} The district court denied the State's motion, suppressing the evidence because it constituted testimonial hearsay. The district court found that the labelled swabs collected during the SANE exam constituted SANE Vandiver's testimonial statements that the evidence was what it claimed to be-DNA evidence collected from Victim. The court found that those testimonial statements were subject to a Confrontation Clause analysis under Carmona, which the State could not satisfy as SANE Vandiver was not available for cross-examination at trial nor at a previous opportunity. The court declined the State's suggestion that this case fell into an ongoing emergency exception to the Confrontation Clause.
{¶6} The State appeals from the district court's order suppressing the statements of SANE Vandiver contained within the SANE test kit. We first address the State's argument that Carmona does not apply in circumstances of an unknown perpetrator, then turn to the argument that the evidence was collected for the primary purpose of solving an ongoing emergency. We review a district court's determination that evidence is inadmissible under the Confrontation Clause de novo. State v. Zamarripa, 2009-NMSC-001, ¶ 22, 145 N.M. 402, 199 P.3d 846.
{¶7} The Confrontation Clause of the United States Constitution states that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him [or her]." U.S. Const. amend. VI. Accordingly, courts cannot admit into evidence any "out-of-court statement that is both testimonial and offered to prove the truth of the matter asserted . . . unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant." Navarette, 2013-NMSC-003, ¶ 7 (citing Crawford v. Washington, 541 U.S. 36, 53-54 (2004)). Defining a statement as testimonial requires analyzing it under the "primary purpose" test: "a statement can only be testimonial if the declarant made the statement primarily intending to establish some fact with the understanding that the statement may be used in a criminal prosecution." Id. ¶ 8. "[T]he Confrontation Clause is violated only if the testimonial statement is offered to prove the truth of the matters asserted." Id. ¶ 12.
{¶8} Especially relevant for cases such as this and Carmona, "an out-of-court statement that is disclosed to the fact-finder as the basis for an expert's opinion is offered for the truth of the matter asserted." Navarette, 2013-NMSC-003, ¶ 13. To reiterate then, the declarant of some determinative fact on which an expert opinion turns "must testify at trial and be subject to cross-examination, or alternatively must be unavailable, and the defendant must have had a prior opportunity to cross-examine the declarant." Id.
{¶9} In Carmona, we contemplated a set of facts very similar to those presented here. The state sought admission of DNA evidence collected from a minor victim in a SANE exam-again performed by SANE Lydia Vandiver-following Vandiver's passing, depriving the defendant of an opportunity to cross-examine her at his ensuing trial. See Carmona, 2016-NMCA-050, ¶¶ 1-4. In the suppression hearing, the former director of the Albuquerque SANE Collaborative testified to the process Vandiver would have used to collect the evidence. Id. ¶¶ 5-9. The state offered testimony of chain of custody witnesses regarding the subsequent DNA testing. Id. ¶ 10. This Court upheld the district court order suppressing the DNA expert's opinion because the basis for that opinion included testimonial statements from SANE Vandiver that upon admission at the defendant's trial would violate the Confrontation Clause. Id. ¶ 42. We concluded that the plainly stated principles in Navarette indicate that "the Confrontation Clause prohibits the admission of DNA evidence collected by an unavailable SANE and any expert testimony based thereon when the primary purpose animating the SANE's collection of such evidence is to assist in the prosecution of an individual identified at the time of the collection." Carmona, 2016-NMCA-050, ¶ 13. The only factual distinction of consequence is that in Carmona, the perpetrator was known at the time of the SANE exam. Id. ¶ 2.
{¶10} The State argues that Carmona does not apply to this case because the perpetrator in the instant case was unknown at the time of DNA collection, unlike in Carmona-a status directly observed to be of import in Carmona's holding. The State points out that in both Navarette and Carmona, the perpetrator was known at the...
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