State v. Schwartz

• Decision Date: 17 June 2014
• Docket Number: No. 32,451.,32,451.
• Citation: 327 P.3d 1108
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Bruce SCHWARTZ, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

327 P.3d 1108

STATE of New Mexico, Plaintiff–Appellee,

v.Bruce SCHWARTZ, Defendant–Appellant.

No. 32,451.

Court of Appeals of New Mexico.

March 17, 2014.

Certiorari Denied, June 17, 2014, No. 34,690.

Gary K. King, Attorney General, James W. Grayson, Assistant Attorney General, Santa Fe, NM, for Appellee.

Law Office of Adrianne R. Turner, Adrianne R. Turner, Albuquerque, NM, for Appellant.

OPINION

BUSTAMANTE, Judge.

{1} Bruce Schwartz (Defendant) asserts that his rights under the confrontation clauses of the United States and New Mexico Constitutions were violated when the district court permitted four witnesses to testify by two-way video over the Internet without the necessary findings that use of video was necessary. We agree and, because there is no reasonable possibility that the video testimony did not affect the verdict, conclude that the testimony was not harmless. Consequently, we reverse Defendant's convictions. Concluding there is sufficient evidence to support Defendant's convictions, we also remand for retrial.

BACKGROUND

{2} In March 2008 Martha McEachin left her home in Los Angeles on a train bound for Albuquerque, intending to begin writing a long-planned novel in Mexico. After arriving in Albuquerque, McEachin lived with Defendant for approximately one and a half months before she disappeared. In May, a badly decomposed body was discovered wrapped in a blue air mattress and sheets and covered with a mattress in an alley approximately 500 feet from Defendant's apartment.

{3} After a two-year investigation, Defendant was charged with McEachin's murder and tampering with evidence. He was convicted by a jury of second degree murder and tampering with evidence and sentenced to fifteen years in the Department of Corrections. Additional facts are included in our discussion of Defendant's points on appeal.

DISCUSSION

{4} Defendant makes a number of arguments based on allegations of error in the admission or exclusion of evidence. Because we conclude that Defendant's confrontation rights were violated and that the violation was not harmless, we reverse Defendant's convictions. We also conclude that there is sufficient evidence of Defendant's guilt to permit retrial on remand. Given the disposition of these issues, we do not address Defendant's other arguments.

A. Confrontation Clause

{5} At trial, four of the State's witnesses testified using Skype, an “Internet software application[ ] that ... allow[s] users to engage in real time video and audio communications between two or more locations.” 131 Am.Jur. Trials 475 § 1 (2014). Defendant argues that admission of their testimony via Skype violated his rights under the Sixth Amendment to the United States Constitution and Article II, Section 14 of the New Mexico Constitution. Both the Federal and New Mexico constitutions provide that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]” SeeU.S. Const. amend. VI; N.M. Const. art. II, § 14. We will refer to the clause in both constitutions as “the confrontation clause.”

{6} “[T]he [c]onfrontation [c]lause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 1016, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). But a defendant's rights under the confrontation clause are not absolute. See State v. Almanza, 2007–NMCA–073, ¶ 8, 141 N.M. 751, 160 P.3d 932. Rather, they “may give way to other important interests” when those interests are “narrowly tailored to include only those situations where the exception is necessary to further an important public policy.” Id. (internal quotation marks and citations omitted). Thus, there must be “a particularized showing of necessity in the service of an important public policy before a court may approve an exception to physical presence.” State v. Smith, 2013–NMCA–081, ¶ 8, 308 P.3d 135, cert. denied,2013–NMCERT–006, 304 P.3d 425. “The necessity must be supported by specific findings by the trial court.” Id. ¶ 5.

{7} “[M]ere inconvenience to the witness is not sufficient to dispense with face-to-face confrontation.” State v. Chung, 2012–NMCA–049, ¶ 11, 290 P.3d 269 (internal quotation marks and citation omitted), cert. quashed,2013–NMCERT–003, 300 P.3d 1182. Thus, this Court has reversed convictions where a witness testified via video or telephone conference when (1) the witness was located in Santa Fe and the hearing was held in Aztec, New Mexico, see id. ¶ 3; (2) the witness would have had to travel seven hours and be absent from the State Laboratory Division when it was shorthanded, see Smith, 2013–NMCA–081, ¶¶ 2, 11, 308 P.3d 135; and (3) when a chemist with the state crime lab was called on short notice and had a “busy schedule,” Almanza, 2007–NMCA–073, ¶ 12, 141 N.M. 751, 160 P.3d 932. Our review of confrontation issues is de novo. See Smith, 2013–NMCA–081, ¶ 3, 308 P.3d 135.

The District Court Erred in Permitting Video Testimony

{8} An FBI agent, two forensic scientists, and Defendant's mother testified via video. The State concedes that it “did not list any reason for the video testimony” of FBI Agent Bas or forensic scientist Gross “other than their residing outside of New Mexico.” Additionally, it acknowledges that “the district court failed to make individualized factual findings [as] required to excuse [forensic scientist Pearn's] in-person appearance.” Thus, it concedes that “[t]hese witnesses' testimony violated Defendant's confrontation rights.” Although we are not bound by this concession, we agree with this conclusion because the district court failed to make specific findings supporting its conclusion that video testimony by these witnesses was necessary. Seeid. ¶ 5 (“The necessity must be supported by specific findings by the [district] court.”).¹

{9} Whether it was error to permit Defendant's mother, Patricia Labance, to testify via video presents a more complex question. As justification for permitting Labance to appear by video, the State argued that “Labance was born in 1938 and resides in Florida.... Labance currently suffers from severe stress, anxiety[,] and depression.” It attached a letter from Labance's doctor, which stated that “this patient is suffering from severe stress, anxiety[,] and depression and is physically and psychologically unable to travel out of the state for the for[e]seeable future.” At the hearing on the motion, the district court inquired into the substance of Labance's testimony and discussed with the parties how Skype works. Although the State said that Labance was available to speak to the district court, no evidence was taken at the hearing. The State also said that “[Labance was] not happy to be coming out here. She hasn't seen her son in a number of years. But she will come if necessary, but because of her failing health, ... we'd like to do her [testimony via] live video.” The State also distinguished Chung, in which this Court held that a defendant's confrontation rights were violated when the district court permitted video testimony based on a witness's seven-hour travel time, by arguing that “in our case, the travel is so much further and costly.” See Chung, 2012–NMCA–049, ¶ 12, 290 P.3d 269. After argument, the district court stated that, “given the letter from [Labance's doctor] describing [Labance], I'm going to allow her to testify via ... Skype[.]” The district court did not make written findings.

{10} The State arranged for Labance to testify via Skype from a courthouse in Naples, Florida. During cross-examination, Defendant questioned Labance about her health. Labance testified that she was nervous and that the trial was “upsetting.” In addition, counsel for Defendant and Labance had the following exchange.

Q: ... What type of health issues are you dealing with right now, ma'am?

A: Well, physically I have arthritis really bad. Mentally, I've been very stressed, anxious. I've been very depressed over this whole situation.

Q: And arthritis would be the main medical diagnosis you're suffering from?

A: Yes.

Q: Do you have trouble breathing?

A: Not necessarily, no.

{11} After cross-examination was completed, Defendant moved for Labance's testimony to be stricken from the record. A bench conference was held. Defendant argued that, based on Labance's testimony, there was “no decent reason” that Labance could not have traveled to New Mexico to testify and that, therefore, his confrontation rights had been violated. The district court expressed some confusion about the contents of the doctor's letter, asking, “Is the doctor specific as to diagnoses, or is it general issues regarding health [?]” It is not clear from the record whether the letter was produced for the district court's review during the bench conference. Ultimately, the district court denied Defendant's motion stating, “None of us are doctors, and we don't have the medical records. I'm going to accept, again on the basis of good faith, that there's a legitimate basis for [Labance to appear] by the Skype.”

{12} We interpret the district court's statements to be a finding that it was medically necessary for Labance to testify via video. See Smith, 2013–NMCA–081, ¶ 9, 308 P.3d 135 (citing Commonwealth v. Atkinson, 2009 PA Super 239, ¶ 12, 987 A.2d 743, in which that court held that adult witnesses may testify by video only “when a witness is too ill to travel and when a witness is located outside of the United States”) (internal quotation marks and citation omitted). In doing so, we note that the district court's oral comments are perilously close to being inadequate for appellate review and note again that “[t]he necessity [for video testimony] must be supported by specific findings by the trial court.” Id. ¶ 5; see State v. Benny E., 1990–NMCA–052, ¶ 11, 110 N.M. 237, 794 P.2d 380 (“Absent findings indicating the [district] court was persuaded and why, the decision to deny a defendant his or her right of...