State v. Sanchez

Citation1991 NMCA 37,811 P.2d 92,112 N.M. 59
Decision Date11 April 1991
Docket NumberNo. 11978,11978
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Freddie SANCHEZ, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

Jacquelyn Robins, Chief Public Defender, Hugh W. Dangler, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

Tom Udall, Atty. Gen., Katherine Zinn, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

DONNELLY, Judge.

This case involves the question of whether the trial court's admission of the confession of an alleged accomplice implicating the defendant satisfied constitutional confrontation standards. Defendant also raises two collateral issues: whether the trial court erred in denying his motion for mistrial, and whether the trial court impermissibly commented on the evidence. For the reasons discussed herein, we reverse and remand for a new trial.

FACTS

Defendant was convicted, following a jury trial, of two counts of burglary, contrary to NMSA 1978, Sections 30-16-3 and 30-1-13 (accessory) (Repl.Pamp.1984), and one count of conspiracy, contrary to NMSA 1978, Section 30-28-2 (Repl.Pamp.1984).

At trial the state presented evidence indicating that two residential burglaries had occurred in the Roswell area during late September and early October 1988. Defendant was charged with conspiracy and the burglary offenses on the basis of statements contained in a taped confession given by an alleged co-defendant, Chon Chacon. The taped statement was the only evidence directly connecting defendant to the crimes in question. The tape-recorded statement obtained by the police was made while Chacon was in custody on other charges. During the interrogation, Chacon volunteered that he had been involved in several burglaries. After further questioning, police obtained a taped confession from Chacon admitting his complicity in nine burglaries. The tape-recorded confession also named defendant's brother as having been a participant in most of the burglaries, and stated that defendant had participated in two residential burglaries.

Prior to defendant's trial Chacon entered a plea of guilty to nine counts of burglary, including the two burglaries in which defendant was alleged to have been involved. The state obtained an order permitting Chacon's deposition to be taken before defendant's trial. In his deposition Chacon testified that because of drug usage he had no present recollection of the events described in his tape-recorded statement.

At trial Chacon was called as a prosecution witness. He continued to assert his lack of memory. Defense counsel cross-examined Chacon, and he testified that because of heavy cocaine and alcohol use during the period of the burglaries and at the time he gave his confession, he was unable to remember any of the events. Counsel for defendant cross-examined Chacon and elicited further testimony reiterating his extensive drug and alcohol usage at the time of the commission of the burglaries and at the time that his statement was given. Following defendant's cross-examination, the state moved to have Chacon declared to be "unavailable" as a witness. Over defendant's objection and in the presence of the jury, the trial court ruled that Chacon's trial testimony was, "because of purported lack of memory, worthless," and that he was therefore "unavailable" as a witness. Defendant's motion for a mistrial, grounded upon the trial court's remark concerning Chacon's testimony, was overruled.

The court then permitted portions of Chacon's prior taped statement to be introduced as substantive evidence against defendant. Two portions of Chacon's taped confession were then played to the jury. In his taped statement Chacon named defendant as a participant in two of the burglaries. The tape stated in part:

[Chacon:] Well, he [defendant's brother] finally persuaded me, and, and me and him and his, his brother, I think, yeah, we all went to that house.

[Detective Frosch:] His brother Freddie?

[Chacon:] Yeah. * * *

* * * * * *

[Detective Frosch:] Who kept the rest [of the stolen items]?

[Chacon:] Mark and his brother.

[Detective Frosch:] His brother Freddie?

[Chacon:] Uh-huh.

Chacon's taped statement concerning the second burglary indicated that he and two others had burglarized a second residence. When questioned further he responded:

[Dectective Frosch:] Okay, who's "we?"

[Chacon:] Me and Mark and Freddie.

The state did not present any physical evidence directly linking defendant to the crimes but called witnesses who described the residences which had been broken into, and testified to matters found at the crime scenes. Defendant did not testify at trial.

I. ADMISSIBILITY OF PRIOR STATEMENT

Defendant argues that he was denied his sixth amendment and state constitutional right to confront the witnesses against him when the state introduced portions of the taped statement of Chacon as substantive evidence implicating him in two of the burglaries and as a conspirator. U.S. Const. amend. VI; N.M. Const. art. II, Sec. 14. Defendant also contends that the hearsay statement relied upon by the prosecution constituted the sole evidence directly connecting him with the offenses in question, and that the trial court erred in admitting such statement, because it was devoid of proper indicia of trustworthiness.

The state asserts that Chacon's taped statement was properly admitted under SCRA 1986, 11-804(B)(4) as an exception to the hearsay rule, and that it was sufficiently corroborated by other evidence vouching for its reliability.

The trial court's ruling concerning the trustworthiness of an out-of-court statement will be upheld unless it is clearly erroneous. United States v. Vernor, 902 F.2d 1182 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 301, 112 L.Ed.2d 254 (1990). Similarly, this court in State v. Huerta, 104 N.M. 340, 721 P.2d 408 (Ct.App.1986), observed that the court is invested with discretion in ruling on the admissibility of statements as exceptions to the hearsay rule, and set forth the general rule applicable to the admissibility of hearsay statements against the penal interest of the declarant. See also State v. Maestas, 92 N.M. 135, 584 P.2d 182 (Ct.App.1978). The court in Huerta stated:

Rule 804(b)(4) creates an exception to the hearsay rule if the declarant is unavailable as a witness and the declarant's statement, when made, "so far tended to subject him to * * * criminal liability * * * that a reasonable man in his position would not have made the statement unless he believed it to be true."

Id., 104 N.M. at 342, 721 P.2d at 410.

Although the rules of evidence permit the introduction of hearsay where the statement in question is shown to fall within hearsay exceptions spelled out in such rules, in criminal cases, sixth amendment and New Mexico constitutional confrontation requirements limit the admission of evidence which would otherwise be admissible in civil cases to situations wherein adequate indicia exists showing the reliability of such statement. Idaho v. Wright, --- U.S. ----, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); State v. Crislip, 109 N.M. 351, 785 P.2d 262 (Ct.App.1989); State v. Martinez, 99 N.M. 48, 653 P.2d 879 (Ct.App.1982). See also U.S. Const. amend. VI; N.M. Const. art. II, Sec. 14. Proof of corroborating circumstances is also essential in order to reconcile the requirements of Rule 11-804(B)(4) with the showing of reliability necessary under the Confrontation Clause. N.M. Const. art. II, Sec. 14; State v. Gallegos, 109 N.M. 55, 781 P.2d 783 (Ct.App.1989); State v. Huerta.

In State v. Earnest, 106 N.M. 411, 744 P.2d 539 ("Earnest III "), cert. denied, 484 U.S. 924, 108 S.Ct. 284, 98 L.Ed.2d 245 (1987), our supreme court, following New Mexico v. Earnest, 477 U.S. 648, 106 S.Ct. 2734, 91 L.Ed.2d 539 (1986) ("Earnest II "), and Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), upheld defendant's convictions against a challenge that the trial court's admission of a statement made by an accomplice who was not subject to cross-examination violated defendant's rights under the Confrontation Clause of the sixth amendment. See also Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The court in Earnest III modified its prior analysis in State v. Earnest, 103 N.M. 95, 703 P.2d 872 (1985) ("Earnest I "), determining that a hearsay statement incriminating a co-defendant made by a witness who was not subject to cross-examination, "bore sufficient independent indicia of reliability to rebut the weighty presumption of unreliability," permitting its introduction as substantive evidence. Earnest III, 106 N.M. at 412, 744 P.2d at 540. As observed in Gallegos, whether a statement bears sufficient indicia of reliability to permit its admission into evidence under Rule 11-804(B) is generally a question of law. Id., 109 N.M. at 65, 781 P.2d at 793.

Both our supreme court and this court have examined the factors by which the reliability of hearsay statements may be evaluated in the light of Confrontation Clause requirements. In Earnest III, our supreme court upheld the admissibility of the statement of a co-defendant not subject to cross-examination, where it found sufficient indicia of the trustworthiness of the statement existed by reason of the facts that (1) the declarant was not offered any leniency in exchange for his statement; (2) the statement was against the declarant's penal interest; (3) the statement did not attempt to shift responsibility from the declarant to his accomplices; and (4) because there was independent evidence presented at trial which substantively corroborated the declarant's description of the crime. These same factors were applied by this court in Gallegos.

In Wright, the Court recognized that state and federal courts have identified a number of factors that bear upon the issue of whether hearsay statements made by children in child sexual abuse cases are reliable. The Court observed that the...

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