State v. Lopez

• Decision Date: 15 October 2013
• Docket Number: No. 33,736.,33,736.
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Aquilino LOPEZ, Defendant–Appellant.
• Court: New Mexico Supreme Court

314 P.3d 236

STATE of New Mexico, Plaintiff–Appellee,

v.Aquilino LOPEZ, Defendant–Appellant.

No. 33,736.

Supreme Court of New Mexico.

Oct. 15, 2013.

Bennett J. Baur, Acting Chief Public Defender, Allison H. Jaramillo, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Gary K. King, Attorney General, Ralph E. Trujillo, Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

DANIELS, Justice.

{1} Defendant's motion for rehearing is granted. The opinion filed on August 29, 2013, is withdrawn and the following opinion, which further clarifies the scope of our holding regarding the only issue presented to the Court—whether the constitutional right of confrontation applies at a preliminary examination—is substituted in its place.

{2} Under Article II, Section 14 of the New Mexico Constitution, a defendant may not be brought to trial for a serious criminal offense unless there first has been a determination of probable cause, either by a grand jury or by a judge at a preliminary examination. In this case we consider whether the full constitutional right of confrontation in criminal prosecutions applies at a pretrial probable cause determination. We hold that it does not, because the right of confrontation in Article II, Section 14 of the New Mexico Constitution, as with the right of confrontation guaranteed by the Sixth Amendment to the United States Constitution, applies only at a criminal trial where guilt or innocence is determined. We overrule the contrary precedent of Mascarenas v. State, 1969–NMSC–116, 80 N.M. 537, 458 P.2d 789, to the extent that it held otherwise.

I. BACKGROUND

{3} Defendant Aquilino Lopez was stopped for speeding and arrested for driving with a suspended license. While performing a search incident to the arrest, the arresting officer discovered in Defendant's pocket a clear bag containing a green leafy substance suspected by the deputy to be marijuana. During an inventory of the contents of Defendant's car, officers discovered another bag containing a white powdery substance that they believed to be cocaine. Defendant was charged with possession of a controlled substance with intent to distribute, possession of marijuana, and driving with a suspended or revoked license.

{4} At the Rule 6–202 NMRA preliminary examination conducted in magistrate court to assess probable cause to prosecute, the magistrate court admitted, over Defendant's Confrontation Clause objections, a written report of the New Mexico Department of Public Safety Forensic Laboratories concluding that the white powdery substance was cocaine and the green leafy substance was marijuana. Although the New Mexico Rules of Evidence generally govern proceedings in preliminary examinations, pursuant to Rules 11–101 and 11–1101 NMRA, admission of the laboratory report was permitted by this Court's Rule 6–608(A) NMRA, which provides a specific exception to our hearsay rule for admissibility “[i]n any preliminary hearing” of “a written report of the conduct and results of a laboratory analysis of a ... controlled substance.” Rule 6–608(B) further provides that nothing in the rule “shall limit the right of a party to call witnesses to testify as to the matters covered in such report, nor affect the admissibility of any evidence other than this report.” The magistrate court also considered the expert opinions of two police officers that the two substances were cocaine and marijuana. As a result, the court determined there was probable cause to believe that Defendant had committed the offenses charged and bound the case over for trial in the district court.

{5} Defendant entered a special appearance in the district court and filed a motion to dismiss or, in the alternative, to remand the case to the magistrate court for another preliminary examination. The motion alleged that the magistrate had violated Defendant's confrontation rights under both the Sixth Amendment to the United States Constitution and Article II, Section 14 of the New Mexico Constitution by admitting the forensic laboratory report into evidence at the preliminary hearing without an opportunity for the defense to personally cross-examine the laboratory analyst who prepared the report. The motion argued that as a result the district court did not have jurisdiction to proceed further in the case. The State responded that neither the federal nor state constitution guarantees personal confrontation at pretrial probable cause hearings and, in the alternative, argued that any error in admitting the laboratory report would have been harmless, given the opinion testimony of the officers that the bags in Defendant's possession contained marijuana and cocaine. After a hearing, the district court denied Defendant's motion.

{6} Defendant subsequently entered a plea of guilty to possession with intent to distribute cocaine, reserving the right to appeal the denial of his motion to dismiss or remand, consistent with the conditional plea provisions of Rule 5–304(A)(2) NMRA. Defendant appealed his conviction to the New Mexico Court of Appeals, arguing that the district court did not acquire jurisdiction to hear the case because admission of the laboratory report without an opportunity to face and personally question its author was a denial of Defendant's right of confrontation and that as a result of that denial he had not been afforded a lawful preliminary examination. The Court of Appeals certified the appeal directly to this Court, pursuant to NMSA 1978, Section 34–5–14(C) (1972) and Rule 12–606 NMRA, reciting that the appeal raises an issue of substantial public interest and presents a significant question of law under the New Mexico Constitution in light of the apparent conflict between the holdings in Mascarenas, which applied the Confrontation Clause to pretrial probable cause hearings, and the analysis in the more recent case of State v. Rivera, 2008–NMSC–056, 144 N.M. 836, 192 P.3d 1213, which concluded that because the Confrontation Clause provides a trial right it does not apply in pretrial suppression hearings. See id. ¶ 13. We accepted certification to clarify whether the constitutional right to personal confrontation that is guaranteed at trial also controls the admissibility of evidence in preliminary examination probable cause determinations.

II. DISCUSSIONA. Standard of Review

{7} “Questions of admissibility under the Confrontation Clause are questions of law, which we review de novo.” Id. ¶ 10 (internal quotation marks and citation omitted).

B. The Federal Sixth Amendment Right of Confrontation Is a Trial Right Which Does Not Apply at Preliminary Probable Cause Determinations

{8} Where the United States Constitution and the New Mexico Constitution provide overlapping protections, we apply an interstitial mode of analysis, which requires that we first consider “whether the right being asserted is protected under the federal constitution.” State v. Ketelson, 2011–NMSC–023, ¶ 10, 150 N.M. 137, 257 P.3d 957 (internal quotation marks and citation omitted). “If the right is protected by the federal constitution, then the state constitutional claim is not reached.” Id. The right of confrontation is guaranteed by the Sixth Amendment to the United States Constitution, which in turn “is made obligatory on the States by the Fourteenth Amendment.” Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

{9} The United States Supreme Court consistently has interpreted confrontation as a right that attaches at the criminal trial, and not before. See Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (plurality opinion) (“[T]he right to confrontation is a trial right.”); Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) (“The right to confrontation is basically a trial right.”); cf. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (holding that the Confrontation Clause prohibits introduction at trial of testimony from a preliminary hearing or other forms of testimonial hearsay unless there had been a prior opportunity to cross-examine the original declarant of the oral or written statements).

{10} The Court has based its stance on the differing purposes of pretrial hearings and trials on the merits. See United States v. Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (holding that because the interests at stake are of a lesser magnitude, the process due at a pretrial “hearing may be less demanding and elaborate than the protections accorded the defendant at the trial itself”); see also Brinegar v. United States, 338 U.S. 160, 173, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (“There is a large difference between ... things to be proved, as well as between the tribunals which determine [criminal guilt as opposed to probable cause], and therefore a like difference in the quanta and modes of proof required to establish them.”); Gerstein v. Pugh, 420 U.S. 103, 113–14, 120, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (holding that while the Fourth Amendment requires “a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest,” the United States Constitution does not require trial formalities for a judicial probable cause determination for issuance of an arrest warrant or a postarrest detention review).

{11} Applying federal law, we therefore must reject Defendant's reliance on the Confrontation Clause of the United States Constitution.

C. The New Mexico Constitution's Right of Confrontation Is a Trial Right That Does Not Apply at Preliminary Probable Cause Determinations1. Interstitial Analysis Does Not Justify Deviating from Federal Law

{12} Where a defendant relies on the New Mexico Constitution as providing broader protection, our interstitial approach requires an interpretation of the New Mexico Constitution that is consistent with our interpretation of its federal counterpart unless a different...