State v. Lopez

Decision Date22 July 1996
Docket NumberNo. 15920,15920
Citation122 N.M. 459,1996 NMCA 101,926 P.2d 784
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Rick LOPEZ, Defendant-Appellant.
CourtCourt of Appeals of New Mexico


1. In this case we examine the application of the excited utterance exception to the hearsay rule and the impact of the confrontation and due process clauses on the admissibility of statements which are exceptions to the hearsay rule. We hold that, under the New Mexico Constitution, the State must make a two-pronged showing of (1) necessity and (2) reliability before out-of-court declarations may be admitted against a defendant in a criminal case. We also hold that the showing made in this case was sufficient.


2. In the early morning hours of February 27, 1994, Officer Brown was dispatched to a domestic violence call. The request for assistance came from a pay phone near an apartment complex. When Officer Brown arrived, the caller, Defendant's sister, ran to the patrol car. She was crying, frantic, and yelling for help. She appeared to be intoxicated. She yelled, "Help me. My brother is killing his girlfriend.... Please help me. Please help me. He won't stop hitting her." Defendant's sister directed Officer Brown to the apartment.

3. When Officer Brown arrived at the apartment, he found the victim unconscious on the kitchen floor. The kitchen was in disarray, indicating some kind of altercation. The telephone had been torn from the wall. Defendant was standing in the living room. His sister said to Officer Brown, "That's him right there," and indicated Defendant. Officer Brown asked, "Him?" and pointed to Defendant. Defendant's sister said, "Yes, that's him." Officer Brown handcuffed Defendant and had Defendant sit on the couch.

4. Officer Brown returned to the victim, who had regained consciousness in the kitchen. The victim was "groggy" and "kind of unfocused." Officer Brown questioned the victim, who indicated that she had been injured in a fight with Defendant. She stated that Defendant's sister had come to the apartment after being out drinking. Defendant's sister had gone into the bathroom because she did not feel well. The victim followed her into the bathroom to assist. Defendant started an argument with the victim while she was in the bathroom assisting Defendant's sister. Defendant grabbed the victim by the hair, dragged her out of the bathroom, and began to hit and kick her. Defendant's sister attempted to call the police, but Defendant tore the telephone from the wall to stop her. The victim remembered Defendant hitting her in the kitchen, but did not remember anything else until she regained consciousness after Officer Brown arrived.

5. While rescue personnel were assisting the victim, Officer Brown spoke with Defendant. Defendant stated that, during the argument, the victim had hit him first. Defendant admitted that he hit her back, but he did not know how she was injured. Defendant was not visibly injured.

6. Officer Brown testified that Defendant, Defendant's sister, and the victim were all intoxicated. He later recanted his testimony stating that the Victim admitted she had consumed "a couple of beers," but was not drunk. Officer Brown also testified that Defendant smelled of alcohol, but that he was unable to determine the extent of Defendant's intoxication.

7. Defendant was charged with aggravated battery and assault. Prior to trial, Defendant attempted to exclude the hearsay evidence of the victim and Defendant's sister from being offered through Officer Brown. After listening to Defendant's motion to exclude the evidence, the State reduced the charge to simple battery, a petty misdemeanor. Defendant based his motion on his right to confront the witnesses against him, as guaranteed by the Sixth Amendment to the United States Constitution and Article II, Section 14 of the New Mexico Constitution, as well as on the due process clauses of each constitution.

8. At the pre-trial motion to exclude, the State indicated that its practice was to mail subpoenas to its witnesses and, if the witnesses have moved, the State will receive a return statement showing the witnesses' new addresses. When this case was first set for trial, the State mailed the subpoenas, but received no information in return. Prior to the second trial setting, the State both mailed the subpoenas and had process servers try to personally serve them on the victim and Defendant's sister. The process servers were unsuccessful. The State's attorney told the court:

We have not been able to serve these subpoenas. They have moved. We have no addresses. We have nothing.... We have not been able to find any new address for the victims. We have not been able to find the victims at all. ... We cannot secure their presence. We can't find their address. We can't find any information to attempt to locate them. I've asked the officer if he knew anything more about the victims to attempt to locate them, and he did not. There's nothing more that we can do to try to find these people. They are not available as far was we can find.

9. Defendant did not object to the State's recitation or ask to have the State's attorney testify to allow for cross-examination. Neither did Defendant argue that any witnesses, such as clerical staff or process servers, be produced for examination or cross-examination. Rather, Defendant simply argued that the State's showing was an insufficient legal basis on which to rule that the victim and Defendant's sister were unavailable to testify in person.

10. The State justified the admission of the statements as excited utterances, and thus exceptions to the hearsay rule. See NMRA 1996, 11-803(B). Defendant argued that too much time had passed to qualify the statements as exceptions to the hearsay rule and that the victim's and Defendant's sister's intoxication made their statements unreliable. The metropolitan court permitted Officer Brown to testify about the victim's and Defendant's sister's statements. Defendant did not argue that there was any distinction between the victim's statement, made in response to Officer Brown's questions, and Defendant's sister's statements, made spontaneously when she saw Officer Brown. Defendant's sister's later written statement was excluded from evidence on Defendant's objection because the requisite spontaneity was lacking. The victim's later tape-recorded statement was not even offered into evidence. Defendant was found guilty of the charge of misdemeanor battery. The conviction was affirmed on appeal of record to the district court.


11. Defendant claims that the metropolitan court violated his federal and state constitutional rights by allowing Officer Brown to testify about the out-of-court statements of Defendant's sister and the victim. See U.S. Const. amends. VI & XIV; N.M. Const. art. II, §§ 14 & 18. In White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992), the United States Supreme Court held that the confrontation clause does not require the prosecution to either produce a declarant at trial or show the declarant is unavailable when seeking to admit excited utterances. According to White, therefore, Defendant's federal rights arguably have not been violated. Thus, to determine whether his state rights were violated, we must first consider whether New Mexico should follow the United States Supreme Court's holding in White--that unavailability of the declarant need not be shown to admit excited-utterance statements against an accused. We hold that New Mexico should not follow White. Second, we address the efforts by the State to secure the presence of the victim and Defendant's sister and hold that they were sufficient under the circumstances of this case. Third, we explore whether the statements made by Defendant's sister and the victim were properly ruled to be excited utterances by the metropolitan court and hold that the metropolitan court did not err in ruling that they were, given the nature of Defendant's preservation of this issue. We therefore affirm.


12. Defendant relies on State v. Ruiz, 120 N.M. 534, 536, 903 P.2d 845, 847 (Ct.App.), cert. denied, 120 N.M. 498, 903 P.2d 240 (1995), for the proposition that objections to the admission of hearsay evidence raised under the confrontation clause implicate constitutional concerns and must be reviewed de novo. On the other hand, the State simply asserts that the issue is one of admission of hearsay for which the standard of review is abuse of discretion. See In re Troy P., 114 N.M. 525, 530, 842 P.2d 742, 747 (Ct.App.1992); State v. Martinez, 99 N.M. 48, 51, 653 P.2d 879, 882 (Ct.App.), cert. denied, 99 N.M. 47, 653 P.2d 878 (1982).

13. Neither party's rendition is an accurate portrayal of all of the standards of review that are involved in this case. The first question that we address--whether to follow White as a matter of New Mexico constitutional law--is a question of law. No issue of evidence or trial-court discretion is involved in determining what the law in New Mexico should be. Review of questions of law is de novo. See Duncan v. Kerby, 115 N.M. 344, 347-48, 851 P.2d 466, 469-70 (1993). The second question that we address is whether there was an adequate showing of unavailability. Like many mixed questions of fact and law, this question involves both determining what efforts were made to obtain the presence of the witness, a factual question that is reviewed under substantial evidence principles affording discretion to the trial court, and whether those efforts are sufficient under the constitution, a legal question that is reviewed de novo. Cf. State...

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20 cases
  • 1998 -NMSC- 52, State v. Torres
    • United States
    • New Mexico Supreme Court
    • December 3, 1998
    ...requirements if precedent exists construing state provision more broadly than federal); State v. Lopez, 1996-NMCA-101, p 20, 122 N.M. 459, 926 P.2d 784 (construing Article II, Section 14 more broadly than federal precedent on the issue of unavailability), he offers no persuasive reasons to ......
  • State v. Garcia
    • United States
    • Court of Appeals of New Mexico
    • May 23, 2019 have harmful evidentiary matters reviewed under the plain error rule. See generally State v. Lopez , 1996-NMCA-101, ¶ 14, 122 N.M. 459, 926 P.2d 784 ("The right to cross-examination is viewed as the most important element of the right of confrontation. [It] ... is the principal means for......
  • State v. Balderama
    • United States
    • New Mexico Supreme Court
    • March 1, 2004
    ...but only argues that Victim's statement was inadmissible under the Rules of Evidence. Cf. State v. Lopez, 1996-NMCA-101, ¶ 13, 122 N.M. 459, 926 P.2d 784 (reviewing de novo the defendant's constitutional claims regarding the reliability of an out-of-court statement admitted as an excited ut......
  • Williams v. State
    • United States
    • Florida District Court of Appeals
    • December 31, 1997
    ...v. Plant, 236 Neb. 317, 461 N.W.2d 253, 267-68 (1990); Franco v. State, 109 Nev. 1229, 866 P.2d 247, 255 (1993); State v. Lopez, 122 N.M. 459, 926 P.2d 784, 791 (App.), cert. denied, 122 N.M. 279, 923 P.2d 1164 (1996); State v. Rogers, 109 N.C.App. 491, 428 S.E.2d 220, 225, rev. denied, 334......
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1 books & journal articles
  • Dial-in testimony.
    • United States
    • University of Pennsylvania Law Review Vol. 150 No. 4, April 2002
    • April 1, 2002
    ...confront an accuser should not be abandoned simply became the alleged incriminating statement was made spontaneously."); State v. Lopez, 926 P.2d 784, 788-89 (N.M. Ct. App. 1996) ("We are not persuaded that the White decision gives sufficient importance to the values sought to be protected ......

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