State v. Romero

• Decision Date: 15 March 2007
• Docket Number: No. 29,690.,29,690.
• Citation: 2007 NMSC 013,156 P.3d 694
• Parties: STATE of New Mexico, Plaintiff-Petitioner, v. Anthony ROMERO, Defendant-Respondent.
• Court: New Mexico Supreme Court

156 P.3d 694

2007 NMSC 013

STATE of New Mexico, Plaintiff-Petitioner, v. Anthony ROMERO, Defendant-Respondent.

No. 29,690.

Supreme Court of New Mexico.

March 15, 2007.

Rehearing Denied April 11, 2007.

Gary K. King, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Petitioner.

John Bigelow, Chief Public Defender, William A. O'Connell, Assistant Appellate Defender, Santa Fe, NM, for Respondent.

OPINION

MINZNER, Justice.

{1} The State appeals from an opinion by the Court of Appeals remanding a judgment and sentence following Defendant's convictions of aggravated battery against a household member, contrary to NMSA 1978, § 30-3-16(C) (1995); aggravated assault against a household member with a deadly weapon, contrary to NMSA 1978, § 30-3-13(A)(1) (1995); false imprisonment, contrary to NMSA 1978, § 30-4-3 (1963); and bribery or intimidation of a witness, contrary to NMSA 1978, § 30-24-3(A)(3) (1997). See State v. Romero, 2006-NMCA-045, 139 N.M. 386, 133 P.3d 842, cert. granted, 2006-NMCERT-004, 139 N.M. 429, 134 P.3d 120. After the trial, the United States Supreme Court issued its opinion in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). While this case was pending on appeal to this Court and during briefing, the United States Supreme Court issued its opinion in Davis v. Washington, 547 U.S. ___, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). We address three general issues: (1) whether two of the victim's out-of-court statements were inadmissible because they were testimonial under Davis and Crawford; (2) whether, even if inadmissible, their admission was harmless error; and (3) whether Defendant forfeited his right to object to the admission of those statements. See State v. Alvarez-Lopez, 2004-NMSC-030, 136 N.M. 309, 98 P.3d 699 (holding the doctrine of forfeiture by wrongdoing inapplicable when a witness had been deported during the period of time the defendant had been a fugitive). We affirm.

I. Background

{2} The facts underlying this appeal are stated clearly and thoroughly in the Court of Appeals' Opinion. Romero, 2006-NMCA-045, ¶¶ 2-11, 139 N.M. 386, 133 P.3d 842. We do not restate them. We ought to emphasize, however, that Defendant was charged not only with domestic violence, which is the subject of this appeal, but also with the death of the victim, his wife. See State v. Romero, 2005-NMCA-060, 137 N.M. 456, 112 P.3d 1113, cert. granted 2005-NMCERT-005, 137 N.M. 523, 113 P.3d 346, cert. quashed, 2006-NMCERT-003, 139 N.M. 353, 132 P.3d 1039 (Romero I). The domestic violence charges arose out of an incident that occurred in mid-October 2001; Defendant was charged with murder after the victim was found dead in his bed in late December 2001. Defendant was convicted of second-degree murder, but the Court of Appeals reversed his conviction, on the basis that he was entitled to but had not received instructions on nondeadly force self-defense and on involuntary manslaughter. Romero I, ¶¶ 22-23.

{3} In this appeal the Court of Appeals may have reasoned that if the doctrine of forfeiture by wrongdoing applied, the issues of whether testimonial evidence had been admitted erroneously under Davis and Crawford and, if so, whether the error was harmless would be moot. See Romero, 2006-NMCA-045, ¶ 45, 139 N.M. 386, 133 P.3d 842. For whatever reason, the Court of Appeals first addressed the doctrine of forfeiture by wrongdoing. In addressing the doctrine of forfeiture by wrongdoing, the Court appropriately indicated its concern that Alvarez-Lopez may have stated the doctrine too narrowly. Id. ¶ 37.

{4} We address the issues in the order Defendant briefed them. Defendant had the benefit of Davis by the time his answer brief was due, and Davis illuminates Crawford. Further, the preliminary questions ordinarily would seem to be whether Defendant has established an error at trial and, if so, whether that error is harmless. Therefore, we begin with a discussion of the evidentiary errors on which Defendant relied in arguing to this Court and the effect of Davis on the analysis of testimonial hearsay for purposes of the Confrontation Clause.

II. Discussion

{5} Davis consolidated two appeals, each arising from a state conviction. Each appeal presented the issue of when a victim's out-of-court statements are subject to the Confrontation Clause of the Sixth Amendment. Each appeal stemmed from police investigation of a domestic dispute, and in each appeal, the declarant was unavailable at trial. Id. at ___, 126 S.Ct. at 2270-73. The first case, Davis, involved the admissibility of questions posed to the victim by a 911 operator during an emergency call about a domestic dispute, while the second case, Hammon v. Indiana, involved the admissibility of the victim's written statements in an affidavit given to a police officer after an alleged domestic dispute. Id. The Court held that the Davis 911 call was admissible but that admitting the Hammon affidavit would be a violation of the defendant's Sixth Amendment rights. Id. at ___, 126 S.Ct. at 2277-80.

{6} Davis further clarified the rule promulgated by Crawford, which held the Confrontation Clause bars the use of out-of-court statements made by witnesses that are testimonial, unless the witness is unavailable, and the defendant had a prior opportunity to cross-examine, regardless of whether such statements are deemed reliable. Davis, 547 U.S. at ___, 126 S.Ct. at 2273-74 (discussing the holding in Crawford concerning the phrase "testimonial statements"). In deciding Crawford, the Court deliberately chose not to adopt a comprehensive definition of "testimonial," but stated:

The text of the Confrontation Clause reflects this focus [on testimonial hearsay]. It applies to `witnesses' against the accused — in other words, those who `bear testimony.' 2 N. Webster, An American Dictionary of the English Language (1828). `Testimony,' in turn, is typically `[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' Ibid. (alteration in original). An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.

Crawford, 541 U.S. at 51, 124 S.Ct. 1354.

{7} As part of an ongoing discussion of the Confrontation Clause and its application to the admission of out-of-court witness statements, Davis explored and defined the meaning of testimonial hearsay, holding:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Id. at ___, 126 S.Ct. at 2273-74 (footnote omitted) (emphasis added). Davis confined its discussion of interrogation to situations involving law enforcement officers and their agents, concluding that actions of 911 operators, while not law enforcement officers themselves, qualified as actions of the police. Id. at ___, 126 S.Ct. at 2274. The Court did not address further the scope of police interrogation, stating that "our holding today makes it unnecessary to consider whether and when statements made to someone other than law enforcement personnel are `testimonial.'" Id. n. 2.

{8} The Court distinguished Crawford, which considered an interrogation by police officers of a witness hours after the event she described, from Davis, which considered an interrogation by a 911 operator during an ongoing emergency, based on the immediacy of the event. "[T]he nature of what was asked and answered in Davis, again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past." Davis, 547 U.S. at ___, 126 S.Ct. at 2276. "[T]he difference in the level of formality between the two interviews is striking." Id. at ___, 126 S.Ct. at 2276-77.

{9} On appeal to this Court, Defendant argues that when the Sexual Assault Nurse Examiner (SANE nurse) examined the victim, she was acting as a proxy for law enforcement officers and conducting a police interrogation. Defendant notes the victim's visit was a result of her grand jury testimony and the help of a law enforcement officer working on the criminal case against Defendant. He argues the trial court erred in permitting the nurse to recite the victim's statement as if the nurse had been the victim.

{10} At trial, Officer Lewandowski testified about the victim's appearance and demeanor and his initial interaction with her at the scene on October 13, 2001. Romero, 2006-NMCA-045, ¶ 5, 139 N.M. 386, 133 P.3d 842. The State played for the jury a taped interview of the victim, conducted the same afternoon as the incident. Id. ¶ 6. While the admissibility of the victim's statements to the officer at the scene are not an issue on appeal to this Court, Defendant argues the taped interview was admitted as testimony in violation of his Sixth Amendment right to confrontation. He does not contend the officer's testimony about the victim's appearance and demeanor and his interaction with her on October 13 should have been excluded.

{11} We address each evidentiary issue separately. Then we address the question of whether any error in admitting evidence was harmless. Finally, we address the question of whether the doctrine of forfeiture by wrongdoing is applicable.

A. The SANE Nurse's Testimony

{12} Defendant argues the statement given by the victim during the SANE interview was testimonial in three respects. First, the statement was the product of an investigation by authorities. Second, the victim subjectively knew her...