State v. Roybal

• Decision Date: 28 April 1988
• Docket Number: No. 9905,9905
• Citation: 1988 NMCA 40,756 P.2d 1204,107 N.M. 309
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Augustine Daniel ROYBAL, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1204

756 P.2d 1204

107 N.M. 309

STATE of New Mexico, Plaintiff-Appellee, v. Augustine Daniel ROYBAL, Defendant-Appellant.

No. 9905.

Court of Appeals of New Mexico.

April 28, 1988.

Certiorari Denied June 1, 1988.

[107 NM 309] Hal Stratton, Atty. Gen., William Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender, Susan Gibbs, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

APODACA, Judge.

Defendant appeals his conviction for embezzlement over $100.00, after a bench trial. He raises one issue on appeal. Another issue listed in the docketing statement but not briefed is deemed abandoned. See State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App.1985). We affirm.

In October 1985, a customer entered a bicycle shop co-owned by Daniel Boone (Boone) and expressed interest in purchasing a mountain bike. Because of prior bicycle losses, Boone required a photo identification card from anyone taking a bicycle for a test ride. The customer handed Boone an identification card. Boone compared the physical description and photograph on the card with the customer. Seeing that they matched, he kept the card and allowed the customer to take the bicycle for a ride. The customer failed to return.

The next day, Boone notified the police of the loss and gave them information from the identification card. Boone later selected defendant's photograph from a photo array as the person who took the bicycle. At trial, he positively identified defendant as the offender.

Charles Ervin (Ervin), the other co-owner of the bicycle shop, had seen defendant's identification card and testified that defendant had previously come into the shop. Ervin was also asked on direct examination about a telephone call he received before trial. Defendant objected on foundational grounds because Ervin could not identify the voice he heard on the telephone as defendant's. The objection was sustained.

Defendant testified on his own behalf. He denied ever having been in the bicycle shop or having made the telephone call to Ervin. He explained that he lost his identification card eleven months earlier. He testified the loss of his identification card was never reported to the police and he never sought a replacement. He also stated that his mother was Adela Armijo whose address was 436 Salazar, S.E. Defendant presented the testimony of his girlfriend and her sister, who both corroborated his testimony concerning the loss of his identification card.

On rebuttal, the state made an offer of proof, presenting Ervin's testimony to the effect that a person who identified himself as Augustine Roybal called the bicycle shop. The caller said he was in jail and had been framed on the embezzlement charge. He offered to pay for the bike and left his mother's telephone number, 247-2721, together with instructions to call her so she could take care of payment. The caller asked if Ervin would agree to this proposal. Then the caller apologized and said he was sorry he took the bicycle.

To establish a foundation for these statements, the state called the investigating officer, Officer Klein, who testified that he went to the telephone company's security office to check on telephone number 247-2721. Over defendant's hearsay objection, the officer testified that, in his presence, a telephone company security officer "checked out the number" and found that at the time of the call, it had belonged to Abran Armijo at 436 Salazar Court, S.E. Based on this foundational evidence, the trial court accepted the state's offer of proof.

At the close of the evidence, the trial court entered its findings of fact and conclusions of law essentially determining that defendant was entrusted with a bicycle by Boone; the bicycle had a market value of over $100.00; defendant converted the bicycle to his own use; and defendant intended to deprive the owner of the bicycle. Based on these findings, the trial court found defendant guilty of embezzlement.

Defendant contends the trial court erred in admitting as evidence the telephone confession of defendant, when the only foundation for that confession was unsubstantiated hearsay.

At the outset, we note defendant was tried without a jury. In a bench trial, the trial court is presumed to have disregarded improper evidence, and erroneous admission of evidence is not reversible error unless it appears the trial court must have relied on it in reaching its decision. City of Roswell v. Gallegos, 77 N.M. 170, 420 P.2d 438 (1966); In re Doe, 89 N.M. 700, 556 P.2d 1176 (Ct.App.1976). We note also that the statements made in the telephone call were admissions and would therefore be admissible under SCRA 1986, 11-801(D)(2)(a) if it was established the caller was defendant. Thus, the specific issue before us is whether the trial court could properly consider Officer Klein's hearsay testimony concerning the telephone company records in determining whether the caller was defendant. We believe the trial court could properly consider both the testimony of Officer Klein and the telephone confession.

Preliminary questions on the admissibility of evidence are determined by the trial judge. SCRA 1986, 11-104(A). In this determination, the judge is not bound by the rules of evidence, except those involving privileges and relevancy. Id. The identity of the caller was such a preliminary question. We hold the trial court properly considered Officer Klein's testimony, as well as the contents of the telephone call itself, in determining whether defendant was the caller.

This position finds support in Bourjaily v. United States, 483 U.S. ----, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). In Bourjaily, the Supreme Court addressed a defendant's challenge to the admissibility of evidence under Federal Rule of Evidence 104. With respect to preliminary questions involving the admissibility of a co-conspirator's statement pursuant to Rule 11-801(D)(2)(e), the Court held that the trial court need be satisfied only by a preponderance of the evidence that such preliminary facts were established. The Court also held that Rule 104(a) authorizes consideration of hearsay in determining preliminary questions of admissibility and that the trial judge should receive the evidence and give it the weight his judgment and experience counsel. Id. In the present case, Officer Klein's testimony was a preliminary matter within the meaning of Rule 11-104(A).

Defendant next argues Officer Klein's hearsay testimony provided the sole foundation for the admission of defendant's "hearsay" confession, thus distinguishing this case from Bourjaily. Bourjaily did not decide whether the hearsay co-conspirator's statement could provide the sole basis for its own admission. Id. 107 S.Ct. at 2781-82. We simply note here, as did the Court in Bourjaily, that there was independent evidence tending to establish defendant as the caller. Defendant testified his mother's last name was Armijo and that she resided at 436 Salazar, S.E. Further, the trial court could have properly considered the contents of the telephone call itself in determining the caller's identity. Id. at 2782. The caller provided facts of a personal nature, including defendant's mother's telephone number and the fact he was calling from jail. The identity of a party making a telephone call may be established by either direct or circumstantial evidence. See State v. Danielson, 37 Wash.App. 469, 681 P.2d 260 (1984). The caller's message itself during the telephone conversation may provide evidence of the caller's identity. Id. The trial court was entitled to consider Officer Klein's testimony on verification of the telephone number, the defendant's own testimony that his mother lived at the address shown by telephone company records and the specific content of the phone call to determine if it was more probable than not that the call was made by defendant.

Defendant also contends that even if the hearsay were otherwise admissible, its admission violated his right to confront witnesses against him. See U.S. Const. amend. VI; N.M. Const. art. II, Sec. 14; State v. Hensel, 106 N.M. 8, 738 P.2d 126 (Ct.App.), cert. denied, --- U.S. ----, 108 S.Ct. 358, 98 L.Ed.2d 383 (1987); State v. Austin, 104 N.M. 573, 725 P.2d 252 (Ct.App.1985). We interpret this argument as meaning that the state should have called the telephone company records custodian as a witness. However, the right of confrontation extends only to the right to be confronted with witnesses against the accused. State v. Barton, 79 N.M. 70, 439 P.2d 719 (1968). The records were not used to show defendant was the one who embezzled the bicycle, but only to verify that the telephone number given by the caller was assigned to someone named Armijo. We conclude the evidence did not constitute a statement by an "accuser" within the constitutional guaranty of confrontation. See id. Besides, even if defendant's confrontation rights had been violated, there is no prejudicial error where an unconfronted witness does not form a vital part of the state's case. State v. Worley, 100 N.M. 720, 676 P.2d 247 (1984). Because the state presented an eyewitness who otherwise directly implicated defendant, we conclude that use of the telephone records as part of the foundation for testimony concerning the telephone call was not vital to the state's case. Finally, we note that Bourjaily rejected any suggestion that admission of preliminary statements under Rule 104 violated defendant's right of confrontation.

Defendant cites Austin and Hensel in support of his argument that his...