State v. Navarette

• Citation: 294 P.3d 435
• Decision Date: 17 January 2013
• Docket Number: No. 32,898.,32,898.
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Arnoldo NAVARETTE, Defendant–Appellant.
• Court: Supreme Court of New Mexico

294 P.3d 435

STATE of New Mexico, Plaintiff–Appellee,

v.Arnoldo NAVARETTE, Defendant–Appellant.

No. 32,898.

Supreme Court of New Mexico.

Jan. 17, 2013.

Robert E. Tangora, L.L.C., Robert E. Tangora, Santa Fe, NM, for Appellant.

Gary K. King, Attorney General, Margaret E. McLean, Assistant Attorney General, Daniel F. Haft, Assistant Attorney General, Olga Serafimova, Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

CHÁVEZ, Justice.

{1} The main question in this case is whether Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and its progeny preclude a forensic pathologist from relating subjective observations recorded in an autopsy report as a basis for the pathologist's trial opinions, when the pathologist neither participated in nor observed the autopsy performed on the decedent. We answer this question affirmatively and conclude that there was a Confrontation Clause violation because (1) the autopsy report contained statements that were made with the primary intention of establishing facts that the declarant understood might be used in a criminal prosecution, (2) the statements in the autopsy report were related to the jury as the basis for the pathologist's opinions and were therefore offered to prove the truth of the matters asserted, and (3) the pathologist who recorded her subjective observations in the report did not testify at trial and Defendant Arnoldo Navarette did not have a prior opportunity to cross-examine her. We therefore reverse and remand for a new trial. The remaining issues raised by Navarette are without merit.

BACKGROUND

{2} Navarette was tried and convicted as a principal for the first-degree murder of Reynaldo Ornelas and aggravated battery with a deadly weapon for the non-fatal shooting of Reynaldo's brother, Daniel Ornelas. The Ornelas brothers were shot while leaning into the open driver's side window of a parked car driven by Dolores “Lolo” Ortega, in which Navarette was the front-seat passenger. Navarette's defense was that the driver was the shooter. Daniel testified that Navarette shot him and his brother. However, the first police officer who interviewed Daniel about the shooting testified that Daniel said that he did not know who shot him. Only two other witnesses testified that they saw who shot the Ornelas brothers.¹ Diane Ornelas testified that Navarette was the shooter. Miguel Montoya testified that Lolo, the driver, was the shooter.

{3} Presumably to assist the jury in assessing who shot the victims, the State called Dr. Ross Zumwalt, the Chief Medical Investigator for the State of New Mexico, to testify about the cause and manner of Reynaldo's death; whether the entry and exit wounds could explain Reynaldo's position at the time he was shot; and whether Dr. Zumwalt had an opinion, based on the observations recorded in the autopsy report, as to whether the gun was fired from within two feet of the victim. Dr. Zumwalt testified that Dr. Mary Dudley, who at the time of trial was the Chief Medical Investigator in Kansas City, Missouri, performed the autopsy on Reynaldo. The autopsy was performed as part of a homicide investigation and two of the investigating officers attended the autopsy. Dr. Zumwalt neither participated nor observed Dr. Dudley perform the autopsy, yet he testified that Dr. Dudley followed the standard procedure for performing autopsies.

{4} Navarette objected to both Dr. Zumwalt's testimony and Dr. Zumwalt's reliance on the autopsy report, asserting his Sixth Amendment right to confront witnesses against him. After hearing preliminary testimony from Dr. Zumwalt and listening to oral argument, the trial court asked the State whether Dr. Zumwalt's testimony was necessary. Based in part on the representation that his testimony was necessary, the trial court overruled Navarette's objection, and Dr. Zumwalt was permitted to testify before the jury and to rely on the contents of the autopsy report in expressing his opinions.

{5} The State referred Dr. Zumwalt to the contents of the autopsy report throughout his direct examination. The autopsy report itself was never offered into evidence. Photographs of the decedent showing entry and exit wounds were admitted without objection, as were figure diagrams illustrating the location of the entry and exit wounds. Based on the photographs and the contents of the autopsy report describing Reynaldo's injuries, Dr. Zumwalt testified that Reynaldo died rapidly from internal bleeding resulting from a single gunshot wound. This opinion was corroborated by eyewitnesses, each of whom testified that they heard gunshots, saw Reynaldo take a few steps backward, and collapse dead shortly after being shot.

{6} The disputed issue was who shot Reynaldo—the driver, who was closest to Reynaldo, or Navarette, who was several feet away from Reynaldo. Relevant to this disputed issue, Dr. Zumwalt testified that based on the entry and exit wounds, Reynaldo could have been leaning into the window at the time he was shot. Perhaps more important was Dr. Zumwalt's testimony regarding the absence of soot or stippling. He testified that the standard procedure is for a pathologist to look for soot or stippling on the decedent's clothing or body. He further testified that evidence of soot, stippling, and gunpowder is not always clear to the naked eye, and therefore analysts often need to “use a magnifying scope to look for [evidence of gunpowder or powder flakes].” He also testified that at times a decedent's clothing is preserved and sent to a crime lab for closer analysis regarding the presence of soot or stippling. Through his testimony, Dr. Zumwalt suggested that at the time the gun was fired, the gun was not within two feet of Reynaldo because the autopsy report states that no evidence of soot or stippling was found on Reynaldo's body or clothing. During cross-examination Dr. Zumwalt again repeated Dr. Dudley's assertion in the report that this was a distant range shooting, because Dr. Dudley did not see any evidence of a close range shooting. The prosecution emphasized Dr. Zumwalt's testimony in his closing argument to the jury, explaining that based on the expert testimony, the shooter could not have been the driver. It is against this factual backdrop that we analyze Navarette's Confrontation Clause objection.

DISCUSSIONThe Validity of Navarette's Confrontation Clause Objection Depends on Whether Dr. Zumwalt Related Testimonial Statements Made by Dr. Dudley

{7} Our examination of Crawford and its progeny reveals that at least five justices of the United States Supreme Court have agreed upon the following principles that we conclude are essential to a Sixth Amendment Confrontation Clause analysis. Crawford, 541 U.S. at 36, 124 S.Ct. 1354;U.S. Const. amend. VI. The first principle relevant to this case is that an out-of-court statement that is both testimonial and offered to prove the truth of the matter asserted may not be admitted unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 53–54, 124 S.Ct. 1354 (“[T]he Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”). What constitutes a testimonial statement is not easily discernable from a review of Crawford and its progeny. In Crawford, the United States Supreme Court described “testimonial” statements as “solemn declaration[s] or affirmation[s] made for the purpose of establishing or proving some fact.” Id. at 51, 124 S.Ct. 1354 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). The Crawford majority also set forth the following non-exhaustive list of “core class of ‘testimonial’ statements”:

[ E ] x parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially [;] extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions[;][and] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

Id. at 51–52, 124 S.Ct. 1354 (internal quotation marks and citations omitted).

{8} Since Crawford, a majority of the United States Supreme Court has mainly focused on the primary purpose for which the statement was made. “[Statements] are testimonial when ... the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

We have previously asked whether a statement was made for the primary purpose of establishing “past events potentially relevant to later criminal prosecution”—in other words, for the purpose of providing evidence. Davis, 547 U.S., at 822, 126 S.Ct. 2266; see also Bullcoming [ v. New Mexico], 564 U.S. [––––], at ––––, 131 S.Ct. [2705], at 2716–2717 [180 L.Ed.2d 610 (2011) ]; [ Michigan v.] Bryant, 562 U.S., [––––] at ––––, ––––, 131 S.Ct. [1143], at 1157, 1165 [179 L.Ed.2d 93 (2011) ]; Melendez–Diaz [ v. Massachusetts], 557 U.S. [305], at 310–311, 129 S.Ct. 2527[, at 2532, 174 L.Ed.2d 314 (2009) ]; Crawford, 541 U.S., at 51–52, 124 S.Ct. 1354.

Williams v. Illinois, ––– U.S. ––––, ––––, 132 S.Ct. 2221, 2273–74, 183 L.Ed.2d 89 (2012) (Kagan, J., dissenting, joined by Scalia, Ginsburg, and Sotomayor, JJ.). Justice Thomas agrees with the primary purpose analysis, although he would also require the statement to be solemn or formal, akin to an affidavit.

The original formulation of that test asked whether the primary purpose...