State v. Silva

• Decision Date: 20 August 2008
• Docket Number: No. 30,555.,30,555.
• Citation: 192 P.3d 1192,2008 NMSC 051
• Parties: STATE of New Mexico, Plaintiff-Petitioner, v. Juan Antonio SILVA, Defendant-Respondent.
• Court: New Mexico Supreme Court

192 P.3d 1192

2008 NMSC 051

STATE of New Mexico, Plaintiff-Petitioner, v. Juan Antonio SILVA, Defendant-Respondent.

No. 30,555.

Supreme Court of New Mexico.

August 20, 2008.

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

Caren Ilene Friedman, Santa Fe, NM, Kennedy & Han, P.C., Paul J. Kennedy, Albuquerque, NM, for Respondent.

OPINION

SERNA, Justice.

{1} Defendant Juan Silva was convicted of second degree murder, conspiracy to commit second degree murder, and tampering with evidence. He appealed, and the Court of Appeals remanded for a new trial on the grounds that the district court had violated his Sixth Amendment rights by not allowing defense counsel to inquire into whether a State witness had been promised immunity in exchange for his testimony. The Court also found insufficient evidence to support the tampering conviction and ordered the charge dismissed on remand. The State petitioned this Court to review both issues. We reverse the Sixth Amendment holding and affirm dismissal of the tampering charge.

I. INTRODUCTION

{2} Defendant's convictions stem from the August 30, 2001, murder of Mario Hernandez. Defendant was tried along with two codefendants, each of whom had separate counsel. The facts surrounding Hernandez's murder and the development of the State's case against Defendant are given in the Court of Appeals' opinion. See State v. Silva, 2007-NMCA-117, ¶¶ 2-5, 142 N.M. 686, 168 P.3d 1110. Rather than restating those details, we discuss, as necessary, only those portions of the record relevant to our review.

II. THE SIXTH AMENDMENT ISSUE

{3} We begin with the facts related to Defendant's Sixth Amendment claim. The State's star witness, Bobby Salas (Salas), was the closest thing it had to an eyewitness. His testimony occurred over three days, filled approximately three volumes of transcript, and was rife with inconsistencies. One of those inconsistencies provides the fount for Defendant's claim that he was unable to fully confront Salas on cross-examination.

{4} Prior to trial, Salas testified under oath at a deposition about his acquisition of the photographs that he later used to identify the defendants. At trial, he told a different story about those photos. In response, the State asked Salas a series of questions during direct examination aimed at establishing which of those renditions was true. Anticipating that Salas was about to testify that he had previously lied under oath concerning the photos, defense counsel objected. The objection focused on Salas's Fifth Amendment right against self-incrimination and asserted that, before Salas answered the State's questions, he should be provided with a lawyer who could advise him whether he should testify to the truth or falsity of his prior sworn statements. The State responded, in open court and in front of Salas, that it did not plan to prosecute him for perjury and would not do so even if he testified to having previously lied under oath. The State then suggested, again in front of Salas, that the trial court could give him use immunity to insulate him from any future perjury prosecution. The trial court took a recess to consider the issue.

{5} Upon its return, the trial court heard further argument on the issue. Each of the three defense lawyers joined in this discussion, variously asserting their reasons as to why Salas's Fifth Amendment rights demanded that he consult with a lawyer before answering the State's questions. The State, on the other hand, argued that Salas had not perjured himself, that the trial court could grant him use immunity, and that the State would not later prosecute him for perjury. Ultimately, the trial court decided against immunity and against requiring Salas to consult with an attorney. Instead, it admonished Salas that he was to testify truthfully and that he could be prosecuted for perjury if he failed to do so.

{6} Salas's testimony resumed. At the conclusion of his direct examination, the State asked him whether he had been promised anything in exchange for his testimony, to which Salas responded, "No." Before beginning cross-examination, defense counsel asked to approach and argued at the bench that the State had opened the door to cross-examining Salas on the State's non-prosecution promise made earlier during the discussion of his Fifth Amendment rights. The State responded that such questions should not be allowed because the trial court had not given Salas immunity. At one point, defense counsel stated, "[W]e have to be able to vigorously cross-examine about untrue statements under oath," to which the trial court responded, "I ruled that." Asked to clarify its ruling, the trial court explained:

Well, I think that the key here is whether — I mean, he obviously came in without the promise to testify. I think that the key here is whether — if the State promised him something to come in, I think that's a little different. I see a difference. I wouldn't allow going into that particular area that the State offered him immunity to testify, and it wouldn't be true. They may have offered it, but the Court didn't grant it, so I think that area is still out of bounds. Any inconsistent statements are in bounds.

Nowhere during this exchange did defense counsel claim a Confrontation Clause problem or protest the trial court's ruling on either general constitutional or Sixth Amendment grounds.

{7} Defendant seemingly amalgamates those two exchanges between the court and the lawyers into a single colloquy and argues that, somewhere within that rather nebulous construction, defense counsel raised the Sixth Amendment issue. When questioned at oral argument as to where, precisely, that issue was raised, Defendant admitted that the initial issue was Salas's Fifth Amendment rights but that it later "morph[ed] indirectly" into an issue of Silva's Sixth Amendment rights. Defendant pointed to the trial court's ruling that defense counsel could not ask about the promise of immunity. According to Defendant, the record shows that the trial court was aware of the Sixth Amendment issue and knew that it was ruling on the issue when it purposefully excluded defense counsel's inquiry into the State's promise not to prosecute Salas for perjury.

{8} The State, however, construes the events quite differently, parsing what Defendant interprets as a single conversation into two distinct colloquies and arguing that nowhere did defense counsel alert the mind of the trial court to an alleged Sixth Amendment violation. According to the State, the first colloquy was about Salas's Fifth Amendment rights, while the second sought an evidentiary ruling on the scope of cross examination. Therefore, the State argues, Defendant did not preserve the Sixth Amendment argument for review.

A. Defendant Did Not Preserve the Sixth Amendment Issue

{9} We agree with the State that defense counsel did not alert the trial court to the Sixth Amendment issue that Defendant now claims. "To preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked...." Rule 12-216(A) NMRA. We require that a party assert the basis for its objection "with sufficient specificity to alert the mind of the trial court to the claimed error or errors." State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (quoted authority omitted). Where an objection is made without the specificity necessary to call the trial court's attention to the matter complained of, the matter will be deemed unpreserved and ineligible for review. See Hill v. Burnworth, 85 N.M. 615, 616, 514 P.2d 1312, 1313 (Ct.App.1973).

{10} Defense counsel's objection during Salas's direct examination addressed solely Salas's Fifth Amendment rights; it did not raise, and thus did not preserve, the Sixth Amendment claim that Defendant now argues. Likewise, defense counsel's inquiry into the scope of cross-examination did not preserve the issue. Defense counsel asked the trial court to rule whether the State had opened the door to questions about promises that may have been made to Salas in exchange for his testimony. Counsel did not argue that refusing the opportunity to ask questions about the non-prosecution promise would violate Defendant's constitutional rights generally, nor did counsel take the more desirable approach and argue specifically that Defendant's Sixth Amendment or Confrontation Clause rights would be infringed. The record shows that the trial court treated defense counsel's inquiry as a request for clarification on the scope of cross-examination. See State v. Lucero, 104 N.M. 587, 591, 725 P.2d 266, 270 (Ct.App.1986) (concluding that confrontation issue was not preserved because defendant's objection asked merely for an evidentiary ruling and did not alert the trial court to a constitutional error). Thus, if defense counsel meant to characterize his objections as a Sixth Amendment issue at trial, it was not done with sufficient specificity to call the trial court's attention to the matter complained of, and therefore was not preserved as such. See State v. Mora, 1997-NMSC-060, ¶ 47 n. 1, 124 N.M. 346, 950 P.2d 789 (holding that defendant's failure to object on confrontation grounds or general constitutional grounds resulted in abandonment of Confrontation Clause argument on appeal).

B. The Trial Court did not Commit Fundamental Error

{11} Defendant also argues that, even if his Sixth Amendment claim was not preserved, we should consider it under the fundamental error exception to the preservation rule because it involves his fundamental rights. See Rule 12-216(B)(2) ("This rule shall not preclude the appellate court from considering ... questions involving ... fundamental error or fundamental rights of a party."). The first step in reviewing for fundamental error is to determine whether an error occurred. Campos v. Bravo, 2007-NMSC-021, ¶ 8, 141 N.M. 801, 161 P.3d 846....