State v. Lopez-Orozco
| Decision Date | 04 November 2015 |
| Docket Number | No. 40859.,40859. |
| Citation | 360 P.3d 1056,159 Idaho 375 |
| Court | Idaho Supreme Court |
| Parties | STATE of Idaho, Plaintiff–Respondent–Cross Appellant, v. Jorge Alberto LOPEZ–OROZCO, Defendant–Appellant–Cross Respondent. |
Sara B. Thomas, Idaho State Appellate Public Defender, Boise, attorney for appellant. Sally J. Cooley argued.
Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for respondent. Jessica M. Lorello argued.
A jury convicted Jorge Lopez–Orozco ("Defendant") of three counts of first degree murder. The district court imposed three concurrent determinate life sentences. Defendant appeals from the judgment of conviction based on two alleged evidentiary errors committed by the district court. First, Defendant argues the district court erred in finding that his brother was an unavailable witness at trial and permitting his brother's preliminary hearing testimony to be read into evidence. Second, Defendant contends that the court erred in allowing his brother's unsworn written statement to law enforcement to also be read into evidence. Defendant requests that his convictions be vacated and the case remanded for further proceedings.
On August 11, 2002, a burned car was found in a remote desert area outside of Mountain Home, Idaho. Inside the car were the charred remains and bone fragments of Rebecca Ramirez Almarez ("Almarez") and her two sons, four-year-old R.R. and two-year-old M.H. Almarez and M.H. had suffered fatal gunshot wounds
to the head, but R.R.'s cause of death was undetermined. The vehicle belonged to Defendant, who previously dated Almarez.
On August 16, 2002, the State filed a complaint charging Defendant with three counts of first-degree murder for the deaths of Almarez and her two sons. Defendant fled to and remained in Mexico, where he was discovered by Mexican law enforcement in 2009. Defendant was extradited to Idaho in 2011 and placed under arrest for the murders. In June 2011, the magistrate division of the district court held a preliminary hearing. At the conclusion of the hearing, the magistrate judge found probable cause to support the three first-degree murder charges against Defendant. Defendant pleaded not guilty to the charges and the case proceeded to trial in October 2012. A jury convicted Defendant on all three counts, and the court imposed three concurrent fixed life sentences. Defendant timely appealed two issues related to the testimony and statements of his brother, José Lopez–Orozco ("José").
José is Defendant's youngest brother. At both the preliminary hearing and trial, José was called by the State to testify as to certain incriminating statements Defendant allegedly made in José's presence in San Jose, California, in late July or early August 2002. According to a written statement José provided to law enforcement, José was present at the apartment he shared with Valvina Lopez–Orozco ("Valvina") when Defendant discussed the events on the evening of the murders. José allegedly overheard Defendant confess to killing Almarez and the children and to burning his white Pontiac Grand AM with Almarez and the children inside. These statements were made by Defendant to Valvina and Simón Lopez–Orozco ("Simón") while Valvina, Simón, and Defendant were sitting at the kitchen table. Defendant, José, Simón, and Valvina are siblings. José overheard this conversation from his position in the living room.
Defendant's confession was purportedly unearthed during a discussion between José and Detective Enrique Garcia of the San Jose Police Department on August 16, 2002. José's August 2002 interview with Detective Garcia was later summarized, reduced to writing, and prepared for José's signature. José signed this written statement in 2009. The document, entitled "Statement of José Aurelio Lopez Orozco," was initially drafted in Spanish and signed and dated by José, with each page also initialed by José. The document was translated to English, the accuracy of which is not contested by either the State or Defendant.
On June 15, 2011, José provided limited testimony at Defendant's preliminary hearing regarding the statements made by Defendant in California in 2002. Over Defendant's hearsay objection, the written statement was admitted at the preliminary hearing under the recorded recollection exception. At Defendant's trial in October 2012, José was again called by the State to testify. In this instance, José testified that he did not remember any of Defendant's statements regarding why he left Idaho, any of his own statements to law enforcement in California, or any of his testimony at the preliminary hearing. Based on this lack of recollection, the State asked the district court to declare José unavailable as a witness and to allow his preliminary hearing testimony to be read to the jury. The State also asked for the contents of the written statement José signed for law enforcement in 2009 to be read into evidence. The court allowed the written statement and certain relevant portions of José's preliminary hearing testimony to be read into the record, but not admitted as exhibits.
Defendant argues that the district court erred in permitting José's preliminary hearing testimony to be read to the jury, which was based on its finding that he was an unavailable witness, and further erred in permitting his written statement to law enforcement to also be read to the jury.
"The trial court has broad discretion in the admission and exclusion of evidence and its decision to admit evidence will be reversed only when there has been a clear abuse of that discretion." State v. Robinett, 141 Idaho 110, 112, 106 P.3d 436, 438 (2005). When evidence is admitted under a recognized hearsay exception, the key inquiry is "whether the district court recognized that it did not have discretion to admit the hearsay evidence if the requirements for an exception were not met; whether it acted consistently with the rules governing hearsay exceptions; and whether it reached its decision to admit the hearsay by an exercise of reason." State v. Watkins, 148 Idaho 418, 423, 224 P.3d 485, 490 (2009). However, "in the absence of a timely [and specific] objection to an alleged error at trial, this Court will not consider the alleged error on appeal." State v. Bingham, 116 Idaho 415, 423, 776 P.2d 424, 432 (1989) ; I.R.E. 103(a)(1). "[A]ppellate courts will not consider new arguments raised for the first time on appeal." Obenchain v. McAlvain Constr., Inc., 143 Idaho 56, 57, 137 P.3d 443, 444 (2006).
After being held briefly in contempt, fined, and remanded to the custody of the Elmore County Sheriff's Office based on his refusal to respond to the State's questions, José eventually cooperated and provided some limited testimony at Defendant's preliminary hearing on June 15, 2011. After providing this testimony, these sanctions were lifted by the magistrate court. Specifically, José was asked to testify at the preliminary hearing regarding the subject matter of his statements to law enforcement in 2002 and the written statement he signed for law enforcement in 2009, which cover the same subject matter since the written statement purports to summarize the interview. The crux of the written statement detailed Defendant's incriminating statements to Valvina and Simón that José overheard in 2002.
At the preliminary hearing, José testified about certain of his earlier statements to law enforcement, but was unable to recall many of the material details he previously provided. Specifically, José testified that he overheard Defendant say that he picked Almarez up from her father's house in Oregon and that someone wanted to kill Defendant and/or Almarez. However, he further testified that he did not remember overhearing Defendant discuss what happened to Almarez. In response to this lack of recollection, the State provided José with his signed statement. After reviewing this written statement, José testified that the signature and initials on the statement were his, and that the statement was an accurate depiction of his memory at the time he spoke to Detective Garcia in August 2002 and when he signed it in 2009. Based on José's lack of recollection, the State moved to admit the statement under the recorded recollection hearsay exception. Over Defendant's hearsay objection, the magistrate court granted the State's request.
José was again called to testify at Defendant's trial in 2012. However, prior to taking the stand on October 29, 2012, and based on the State's discussions with José and Valvina in anticipation of their testimony, the court heard argument outside of the jury's presence regarding the witnesses' inability or unwillingness to testify. Specifically, both witnesses had indicated a lack of memory as to any of the information the State was seeking to elicit from them in their trial testimony. Based on this anticipated unavailability, the State asked that José and Valvina's preliminary hearing testimony and José's written statement be admitted at trial under various hearsay exceptions. The district court stated that it would entertain argument from counsel and provide the parties with a tentative ruling, but clarified that the witnesses would have to be present and testify before the court could make a definitive determination as to whether José or Valvina qualified as unavailable. In the court...
To continue reading
Request your trial