State v. Lopez, 25,280.

CourtSupreme Court of New Mexico
Citation128 N.M. 410,993 P.2d 727,2000 NMSC 3
Docket NumberNo. 25,280.,25,280.
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Arthur LOPEZ, Defendant-Appellant.
Decision Date28 December 1999

Stephen Stevers and Associates, Stephen Stevers, Las Cruces, for Appellant.

Patricia A. Madrid, Attorney General, Arthur W. Pepin, Assistant Attorney General, Santa Fe, for Appellee.


MINZNER, Chief Justice.

{1} Defendant Arthur Lopez appeals from a judgment and sentence entered following a jury trial at which he was convicted of first degree murder, see NMSA 1978, § 30-2-1(A)(1) (1994), false imprisonment, see NMSA 1978, § 30-4-3 (1963), and tampering with evidence, see NMSA 1978, § 30-22-5 (1963). We have jurisdiction under Rule 12-102(A)(1) NMRA 1999. On appeal, Defendant contends that the district court erred in admitting a statement as a hearsay exception under Rule 11-804(B)(5) NMRA 1999 and in refusing to instruct the jury on self defense. We affirm.


{2} In the early morning of October 13, 1996, Noah Rodriguez died. Defendant made several statements to Leo Arguello, Anna Jimenez, Crystal Gutierrez, Armando Magana, and Detective Gary Johnson describing the events of October 13, 1996. The following facts were presented at trial through these witnesses as well as a taped statement Magana gave the police.

{3} On October 13, Rodriguez was at Defendant's apartment in Santa Fe, New Mexico. Rodriguez and Defendant were drinking. Defendant was "ingesting" cocaine. Rodriguez made a sexual overture; Defendant rebuffed him and told him to leave. Rodriguez drew a pocket knife. Defendant grabbed a knife from the kitchen, inflicted twenty-one stab wounds to Rodriguez's neck and head, seventeen stab wounds to his hands and arms, and sixteen stab wounds to his trunk. Defendant threw Rodriguez's body on a porch outside the apartment to avoid blood on the carpet and later placed the body in the trunk of Rodriguez's car. Defendant then took a large rock and crushed Rodriguez's skull.

{4} Defendant drove south of Santa Fe in Rodriguez's car, placed his body in a culvert on Highway 41 south of Galisteo and returned to the apartment, parking Rodriguez's car nearby. That evening witnesses saw bloodstains on the porch, bed, and carpet of the apartment.

{5} Defendant was tried twice. During the first jury trial, Magana refused to take the stand and testify. The trial court held Magana in contempt. Arguello was also absent from the first trial; he had escaped from incarceration. Both witnesses had given the Santa Fe Police Department taped statements, and the trial court admitted these statements under Rule 11-803(X) NMRA 1999. The jury found Defendant guilty of three counts of tampering with evidence but did not agree on the remaining charges.

{6} At the second trial, a hearing was held outside the presence of the jury to determine whether Magana and Arguello would testify regarding the events of October 13th and statements made by Defendant after the murder. Arguello agreed to testify; however, Magana once again refused. The trial court ordered Magana to testify and, when he refused, found him in contempt. The State then sought admission of his taped statement and the trial court admitted it under Rule 11-804(B)(5).

{7} Magana's statement contained evidence of the murder and the cleaning of the knife. Magana stated that when he arrived at Defendant's apartment, Defendant was cleaning bloodstains from the floor with a rag. Defendant explained Rodriguez had started "getting fresh;" Defendant grabbed a kitchen knife and stabbed Rodriguez. Defendant then told Magana that he placed Rodriguez's body in the trunk of a car, drove to an unknown destination, disposed of the body, and walked home. Magana also described a long kitchen knife with a thin blade, which Defendant displayed to him. It was covered with dried blood. Upon seeing the knife, Magana told Defendant to clean it.

{8} The jury convicted Defendant of first degree murder, false imprisonment, and one count of tampering with evidence, which concerned disposal of the murder weapon. He brought a timely appeal.


{9} Defendant contends that Magana's taped statement should have been excluded under the hearsay rule. See Rule 11-802 NMRA 1999 ("Hearsay is not admissible except as provided by these rules or by other rules promulgated by the supreme court or by statute.") He contends the trial court erred in admitting the statement under a catch-all exception. See Rule 11-804(B)(5).

{10} Generally, "we review a trial court's admission of evidence under an exception to the hearsay rule only for an abuse of discretion." State v. Torres, 1998-NMSC-052, ¶ 15, 126 N.M. 477, 971 P.2d 1267. Admission of hearsay, however, may violate a defendant's constitutional right to confrontation. See Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)

. When a defendant alerts the trial court to a confrontation issue with a proper objection, he or she raises a question of law. See State v. Ross, 1996-NMSC-031, 122 N.M. 15, 22, 919 P.2d 1080, 1087. On appeal, we review the trial court's decision de novo. See State v. Ruiz, 120 N.M. 534, 536, 903 P.2d 845, 847 (Ct.App.1995).

{11} As a preliminary matter, we consider whether Defendant "preserved the confrontation issue for appellate review." Ross, 122 N.M. at 22, 919 P.2d at 1087. At the hearing prior to trial, Defendant timely objected to the introduction of the taped statement on several grounds, including an objection based on his inability to cross examine or confront the witness. Although Defendant's objection did not specifically mention the Sixth Amendment or Article II, Section 14 of the New Mexico Constitution, his objection was sufficient to bring to the attention of the trial court his claim that the admission of the taped statement would violate his constitutional right to confront witnesses against him. See id. at 23, 919 P.2d at 1088; cf. State v. Lucero, 104 N.M. 587, 591, 725 P.2d 266, 270 (Ct.App.1986)

(holding objections did not alert the trial court to a claim of constitutional error).

{12} Defendant's objection differs from the objections made in State v. Mora, 1997-NMSC-060, ¶ 47 n. 1, 124 N.M. 346, 950 P.2d 789, and Lucero, 104 N.M. at 591, 725 P.2d at 270. In Mora, the "[d]efendant did not timely object to the admission of [a witness's] statement on confrontation grounds." 1997-NMSC-060, ¶ 47 n. 1, 124 N.M. 346, 950 P.2d 789. We noted that the defendant in that case objected to the introduction of the deceased witness's statement to the investigating officer only on general hearsay grounds and never raised or alluded to constitutional violations. See id. Similarly, in Lucero, the defendant also made general hearsay objections, which the Court of Appeals described as directed "to the adequacy of the foundation." 104 N.M. at 590, 725 P.2d at 269.

{13} In this case, Defendant's objection, based on the Confrontation Clause, adequately preserved for judicial review his appellate claim. It was specific and inclusive. It alerted the trial court to both the relevant evidentiary rules and the claim of constitutional error.

{14} The Confrontation Clause of the Sixth Amendment is made applicable to the states through the Fourteenth Amendment. See Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)

. "The right of confrontation is thus one of the elements of `due process of law' that the Fourteenth Amendment secures for criminal defendants in state court proceedings." Ross, 122 N.M. at 22-23,

919 P.2d at 1087-88. The constitutional right of confrontation and the evidentiary rule against hearsay are intricately related in that they both are intended to protect the fundamental right of the accused to receive a fair trial. See id. at 23, 919 P.2d at 1088.

{15} In New Mexico,

the Confrontation Clause permits admission of a non-available declarant's hearsay statement if it falls within a "firmly rooted exception" to the hearsay rule. If the disputed statement does not fall within a firmly rooted hearsay exception, then there must be "particularized guarantees of trustworthiness" equivalent to those associated with a firmly rooted exception.

See id. (citations omitted) (quoting Wright, 497 U.S. at 815,110 S.Ct. 3139 (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980))). By definition, a catch-all exception is not a firmly rooted hearsay exception. See 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 807.03[2][c], at 807-18.1 (Joseph M. McLaughlin, ed., 2d. ed.1999) (discussing federal law and the analogous residual exception). Because a catch-all exception is not firmly rooted, Magana's statement could only be admitted if independent particularized guarantees of trustworthiness were present. See Ross, 122 N.M. at 24,

919 P.2d at 1089. Thus, "[w]hen a court can be confident ... that `the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility,' the Sixth Amendment's residual `trustworthiness' test allows the admission of the declarant's statements." Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 1900, 144 L.Ed.2d 117 (1999) (quoting Wright, 497 U.S. at 820,

110 S.Ct. 3139 and addressing the admissibility of a statement against penal interest). This requirement protects Lopez's confrontation rights. See Ross, 122 N.M. at 23,

919 P.2d at 1088.

{16} "[S]tatements offered under the residual exception are considered `presumptively unreliable and inadmissible under the Confrontation Clause' unless they possess sufficient guarantees of trustworthiness to permit their admission into evidence." 5 Weinstein & Berger, supra, § 807.03[2][c] at 807-18.1-18-2 (quoting Wright, 497 U.S. at 818, 110 S.Ct. 3139). We conclude that statements offered under a New Mexico catch-all exception are also "presumptively unreliable and inadmissible." See id. In this case, the State failed...

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