State v. Montoya, 12756

• Citation: 1992 NMCA 67, 114 N.M. 221, 836 P.2d 667
• Case Date: June 23, 1992
• Court: Court of Appeals of New Mexico

Page 667

836 P.2d 667 114 N.M. 221 STATE of New Mexico, Plaintiff-Appellee,
v.
Robert MONTOYA, Defendant-Appellant. No. 12756. Court of Appeals of New Mexico. June 23, 1992.

Page 668

[114 N.M. 222] Tom Udall, Atty. Gen., William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Robert Sena, Sena & Couleur, P.C., Santa Fe, for defendant-appellant.

OPINION

PICKARD, Judge.

Defendant appeals his conviction for trafficking cocaine. He raises several issues, including a claim that his trial should have been severed from that of his codefendant. We find the severance claim dispositive and reverse. We also address two issues that are likely to be raised again in a retrial. Due to our proposed disposition of the severance issue, we need not address defendant's other issues.

SEVERANCE

Law enforcement officers obtained a warrant to search defendant's home. The affidavit in support of the search warrant contained hearsay statements from a confidential informant (CI) stating that (1) defendant would receive a package of cocaine

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[114 N.M. 223] from Los Angeles on December 1, 1989; (2) within the previous twenty-four hours the CI had seen cocaine (approximately two ounces) at defendant's home; (3) the CI had personally witnessed three drug sales by defendant within the past twenty-four hours; (4) the CI knew defendant sold cocaine from his home; (5) the CI was familiar with the appearance of cocaine; and (6) the CI had purchased cocaine from defendant in the past.

When the officers arrived to serve the warrant, they persuaded defendant to leave the house before informing him of the purpose of their visit. Two officers entered the house and searched for other occupants. In a back bedroom, one officer observed a trunk with a scale on top of it. On top of the scale were a plastic bag with a white, powdery substance and some paper "bindles" used to package cocaine. The officer saw codefendant (Hennessy) sitting on a box facing the scale and holding the weighing tray from the scale in his hand. Defendant and Hennessy were placed under arrest. A further search of the house revealed weapons, more bindles, chemicals used to cut cocaine, and other cocaine paraphernalia. The paraphernalia and a pistol were found in defendant's bedroom, and defendant acknowledged ownership of those items.

Defendant and Hennessy were indicted jointly and scheduled to be tried together. Prior to trial, defendant moved to sever his trial from Hennessy's. The primary basis for his motion was the fact that Hennessy planned to introduce the CI's hearsay statements at trial in an attempt to show that defendant was the dealer and Hennessy was at the house only to purchase cocaine for personal use. At the hearing on the motion for severance, the trial judge denied the motion on grounds of judicial economy. The judge indicated that the CI's statements would not be admitted for the truth of the matters asserted, or as bearing on either defendant's guilt or innocence, but only to show the basis for the officers' investigation of defendant.

At trial, Hennessy did introduce the CI's statements through the testimony of Officer Frank Rael, the affiant for the search warrant. Defendant objected vigorously and again moved for a severance, which the trial judge again denied. The judge did limit the use of the statements in the manner discussed at the pretrial hearing, and he gave the jury a written instruction to that effect. Defendant and Hennessy were both convicted of trafficking cocaine.

Defendant's severance arguments are primarily based on his assertion that the CI's statements would not have been admissible against him in a separate trial. See State v. Segotta, 100 N.M. 18, 665 P.2d 280 (Ct.App.) (severance might be necessary if evidence not admissible in separate trial is admitted during joint trial), rev'd on other grounds, 100 N.M. 498, 672 P.2d 1129 (1983). There are two possible bases for the admission of the affidavit statements. One would be to admit the statements, as the trial court did, not for the truth of the matters asserted but for some other purpose. In that case, the hearsay rule would not apply. Another basis would be to admit the statements completely, under some exception to the hearsay rule. See State v. Beachum, 83 N.M. 526, 494 P.2d 188 (Ct.App.1972) (trial court will be affirmed if its ruling is correct, even if based on an erroneous rationale). However, the state does not argue that the CI's out-of-court declarations would be admissible against defendant under some exception to the hearsay rule, and we do not see any basis to admit them without violating defendant's confrontation rights. See White v. Illinois, --- U.S. ----, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (Confrontation Clause would be violated when unavailability is not shown, or when statements are not shown to have sufficient guarantees of reliability--as they do when they fall within firmly rooted hearsay exceptions); Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) (doubtful that residual or "catch-all" exception is firmly rooted).

The trial judge admitted the CI's statements in this case not for the truth of the allegation that...