State v. Maestas

• Decision Date: 08 January 2018
• Docket Number: NO. S-1-SC-34798,S-1-SC-34798
• Citation: 412 P.3d 79
• Parties: STATE of New Mexico, Plaintiff-Petitioner, v. Joshua MAESTAS, Defendant-Respondent.
• Court: New Mexico Supreme Court

412 P.3d 79

STATE of New Mexico, Plaintiff-Petitioner,

v.Joshua MAESTAS, Defendant-Respondent.

NO. S-1-SC-34798

Supreme Court of New Mexico.

Filing Date: January 8, 2018

Hector H. Balderas, Attorney General, James W. Grayson, Assistant Attorney General, Joel K. Jacobsen, Assistant Attorney General, Santa Fe, NM, for Petitioner.

León Felipe Encinias, Albuquerque, NM, for Respondent.

MAES, Justice.

{1} In prior cases we have determined that while a defendant has the constitutional right to confrontation, that right may be forfeited as a result of his own wrongdoing. In this case we determine whether wrongdoing requires an overt threat of harm to procure a witness's silence or absence. When the State's witness, Juliana Barela, Defendant Joshua Maestas's girlfriend, refused to testify at trial, the district court declared her unavailable. The State then requested that the district court find that Defendant had obtained Barela's unavailability by wrongdoing, and to therefore admit at trial testimony Barela gave to the grand jury, a statement she made to police, and a call she made to 911 operators. In support of its claim that Defendant had procured and intended to procure Barela's unavailability by way of misconduct, the State offered recorded jailhouse phone conversations between Defendant and Barela. The district court determined that Defendant had neither caused nor intended to cause by any wrongdoing Barela's decision not to testify, concluded Barela's prior statements were thus inadmissible, and dismissed Defendant's indictment. The State appealed. The Court of Appeals affirmed the district court's ruling. See State v. Maestas , No. 31,666, mem. op. ¶¶ 1, 20, 2014 WL 4293035 (N.M. Ct. App. Jun. 3, 2014) (nonprecedential).

{2} The State appealed to this Court pursuant to Rule 12-502 NMRA, which governs petitions for review of a decision by the Court of Appeals. We granted certiorari. We hold that wrongdoing, for purposes of the forfeiture-by-wrongdoing exception, need not take the form of overt threat of harm; various forms of coercion, persuasion, and control may satisfy the requirement. Accordingly, we reverse the decisions of the district court and Court of Appeals and remand to the district court to apply the forfeiture-by-wrongdoing exception, which we clarify today.

I. BACKGROUND

{3} Following the altercation with Defendant, Barela received treatment for a concussion at Presbyterian Medical Center and her doctor reported a domestic incident to the police. While at the hospital, Deputy Metzgar of the Bernalillo County Sheriff's Department recorded his interview with Barela, who alleged that on December 2, 2009, Defendant had physically abused her and then threatened to kill her if he went to jail. Barela also completed a written statement. Barela later testified before a grand jury as a witness for the State. The grand jury returned an indictment charging Defendant with aggravated battery against a household member pursuant to NMSA 1978, Section 30-3-16 (2008) ; intimidation of a witness pursuant to NMSA 1978, Section 30-24-3(A)(3) (1997) ; child abuse pursuant to NMSA 1978, Section 30-6-1(D) (2009) ; battery against a household member pursuant to NMSA 1978, Section 30-3-15 (2008) ; and assault against a household member pursuant to NMSA 1978, Section 30-3-12 (1995).

{4} At Defendant's arraignment on January 4, 2010, his probation officer recommended that the district court increase Defendant's bond because Defendant was "an extreme risk to the victim." The probation officer added that at the time of his arrest in this case, Defendant was on supervised release for failing to comply with conditions of release for a separate misdemeanor domestic battery, for which Barela was also the alleged victim. The State expressed concern "about the continued ongoing violence." The district court, concerned that Defendant had acquired a new charge while he was under court-ordered supervision, increased Defendant's bond from $25,000 to $50,000. At the end of the hearing, Defendant acknowledged he was not to have any contact with Barela as a condition of his release.

{5} On February 26, 2010, the district court heard Defendant's motion to review his conditions of release. Defendant asked that his bond be reduced to $25,000 cash or surety with release to a third-party custodian—his aunt or to other relatives in Las Vegas. The State argued in response that bond had already been increased to $50,000 based on a finding that Defendant was a danger to Barela and the community. The State added that Defendant had intimidated and threatened Barela on other occasions as well and reported that a separate criminal matter was pending, stemming from an August 29, 2009, incident wherein Defendant had continually called and harassed Barela, threatening to shoot her. The State also raised that Barela also believed that Defendant's family members had been following her by car on January 2 and January 6, 2010. The district court lowered Defendant's bond to $25,000 and ordered Defendant released pre-trial to the Las Vegas relatives. Again, at the conclusion of the hearing, Defendant acknowledged the court's order not to "have any contact in any manner whatsoever with [Barela]." Barela was present at the hearing.

{6} On April 6, 2010, the district court held a hearing on a new motion Defendant had filed seeking review of his conditions of release. Defendant asked the district court to change his third-party custodian to his aunt and to reduce his bond. The State argued the $25,000 bond set by the district court was reasonable based on Defendant's lengthy history of domestic violence; he had been arrested seven times for domestic violence between 2003 and 2009. Barela was again present at the hearing. The district court denied Defendant's motion to reduce his bond, finding $25,000 was reasonable under the circumstances. The district court allowed Defendant to be released into the custody of his aunt under a continuing order that Defendant "have ... no contact whatsoever" with Barela.

{7} On April 30, 2010, the parties stipulated to a stay of the proceedings pending a determination of Defendant's competency. At later hearings, the district court determined Defendant was not competent to stand trial and was dangerous to himself and others. The district court thus stayed the proceedings and ordered Defendant committed for evaluation and treatment to attain competency. See NMSA 1978, § 31-9-1.2 (1999). Defendant remained under the supervision of his aunt pending transportation for treatment to attain competency.

{8} On November 3, 2010, the day after a hearing to determine Defendant's dangerousness, the State filed an emergency motion for reconsideration of Defendant's conditions of release. The State alleged that Defendant, angry at the outcome of the dangerousness hearing, called and drove to the home of Barela's mother's boyfriend and threatened Barela's mother with a drive-by shooting. By the time police arrived at the home, the State alleged, Defendant had fled the scene. The district court convened a hearing to reconsider Defendant's conditions of release. Defense counsel was present and stated that he had attempted to contact Defendant, had communicated with Defendant's family, and was told Defendant had not returned home. Defense counsel indicated he was not waiving Defendant's presence at the hearing. In response, the State expressed concern that Defendant had allegedly carried a handgun when he threatened Barela's mother with a drive-by shooting, and the State thus asked that Defendant be held in custody until he could be transported for treatment to attain competency. Based on the State's allegations, the district court issued a bench warrant for Defendant's arrest and ordered a no-bond hold. Defendant was arrested later that day and held at the Bernalillo Country Metropolitan Detention Center.

{9} From November 10, 2010, through January 6, 2011, Barela contributed money to Defendant's detention center phone account. Partly because of those contributions, they remained in frequent contact, exchanging a total of 588 phone calls over that period.

{10} On May 5, 2011, Barela filed a notarized affidavit of nonprosecution that she had signed without her own counsel in Defendant's attorney's office, indicating that her statement to the police had been made "under pressure from the police and was written in error"; that on or about December 2, 2009, Defendant "did not intimidate [her] or threaten [her] to keep [her] from reporting the incident of December 2, 2009 to the police"; and that Defendant "did not threaten [her] or cause [her] to believe [she] was in danger of receiving an immediate battery." Then on July 1, 2011, in response to a subpoena to appear at an interview at the district attorney's office, Barela appeared with her counsel, who instructed Barela not to give a statement at the pre-trial interview. The State filed a motion to compel Barela's testimony. The district court held a hearing on the motion on September 2, 2011, and Barela was placed under oath. The State asked, "Ms. Barela, can you tell me what occurred on December 2nd of 2009 involving the defendant, Mr. Joshua Maestas?" At that point, Barela's counsel asserted Barela's Fifth Amendment right not to testify.

{11} After the hearing, the State filed a motion in limine requesting that the district court declare Barela unavailable and find that her prior statements were admissible under the doctrine of forfeiture by wrongdoing. The State contended Defendant had repeatedly called Barela from the jail, instructed her to lie for him and recant her statements, and intended to and did cause Barela's assertion of her Fifth Amendment right, rendering her unavailable to testify against him. In a written response, Defendant did not deny the content of the calls but described them as "puffing" and "not relevant to the issue of whether actions by [Defendant] caused Barela to make the...