State v. Soliz

• Decision Date: 12 June 2009
• Docket Number: No. 28,018.,28,018.
• Citation: 2009 NMCA 079,213 P.3d 520
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Joseph SOLIZ, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

213 P.3d 520

2009 NMCA 079

STATE of New Mexico, Plaintiff-Appellant, v. Joseph SOLIZ, Defendant-Appellee.

No. 28,018.

Court of Appeals of New Mexico.

June 12, 2009.

Certiorari Granted, No. 31,813, July 29, 2009.

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

Hugh Dangler, Chief Public Defender, Adrianne R. Turner, Assistant Appellate Defender, Santa Fe, NM, for Appellee.

OPINION

VANZI, Judge.

{1} This interlocutory appeal follows from the district court's pre-trial ruling that Celina Gallegos's (Gallegos) statements to a 911 operator that Joseph Soliz (Defendant) had just violently attacked her were inadmissible under the Confrontation Clause of the Sixth Amendment to the United States Constitution. The district court appears to have concluded that Gallegos's statements during the 911 call were testimonial in nature, pursuant to Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), and thus the transcript of Gallegos's 911 call is inadmissible under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We reverse and, without ruling on any other facet of the admissibility of Gallegos's statements, hold that her statements during the 911 call are nontestimonial in nature and thus do not violate Defendant's rights under the Sixth Amendment.

BACKGROUND

{2} Defendant was indicted by a grand jury in the Third Judicial District Court on the following four counts: one count of aggravated battery against a household member with a deadly weapon; two counts of aggravated assault against a household member with a deadly weapon; and one count of battery against a household member. Defendant was subsequently arraigned and entered a plea of not guilty.

{3} The charges against Defendant stemmed from events occurring on June 25, 2006. On that date, Gallegos (Defendant's girlfriend and cohabitant) initiated a 911 call from a neighbor's house and, in the course of that call, reported that Defendant had just violently attacked her with a heavy metal pole. The seven-page transcript of that call, which Defendant agreed was authenticated and accurate, is attached as an appendix to this opinion.

{4} Defendant was successfully indicted and scheduled for trial. However, repeated attempts by both the State and counsel for Defendant to contact Gallegos and secure her participation as a witness in the criminal prosecution of Defendant failed. As a result, the district court excluded Gallegos as a witness. The parties do not contest this ruling and do not dispute that Gallegos was unavailable.

{5} In light of Gallegos's unavailability, Defendant submitted two separate motions in limine. The motions are premised on a single underlying legal assertion: that Gallegos's statements during the 911 call are testimonial, as defined in Davis, and thus the transcript in its entirety is inadmissible pursuant to Crawford. During the hearing on the first motion, the State maintained that the transcript was admissible up to page five, up to the point at which Gallegos provides the 911 operator a call-back number. Up to that point, the State claimed that Gallegos's statements concerned an ongoing emergency and thus were nontestimonial and posed no Confrontation Clause problem. The State was unconcerned with the portions of the transcript following page five as, the State contends, it contains mere "repetition." The district court ruled that it would "allow the admission of the [911] tape up to page five" and set a hearing for argument concerning further redaction of the content of those five pages.

{6} During the second hearing, Defendant reasserted his objection, citing Crawford and Davis, that the transcript is inadmissible in its entirety. In the alternative, and in light of the district court's ruling that the first five pages of the transcript of the 911 call were admissible, Defendant sought redaction of certain statements recorded in those five pages. Pursuant to Defendant's argument in the alternative, the district court began evaluating the transcript line-by-line and found certain statements made by Gallegos inadmissible. However, the parties' disagreement over the meaning of Davis and the application of the principles announced therein soon became intractable. Accordingly, the district court discontinued its line-by-line examination and, presumably persuaded by Defendant's arguments, reversed its previous ruling and summarily concluded—without explanation —that the transcript was inadmissible in its entirety. In response to this ruling, the State requested certification for interlocutory appeal. That request was granted and forms the basis of this appeal.

DISCUSSION

Standard of Review

{7} The State's interlocutory appeal requires us to review the admissibility of Gallegos's statements, as recorded in the 911 transcript, in light of Defendant's objections that admission of those statements would violate the Confrontation Clause of the Sixth Amendment to the United States Constitution. "We apply a de novo standard of review as to the constitutional issues related to [the d]efendant's rights under the Confrontation Clause." State v. Massengill, 2003-NMCA-024, ¶ 5, 133 N.M. 263, 62 P.3d 354.

The Sixth Amendment and Crawford

{8} The Confrontation Clause of the Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. The United States Supreme Court's Sixth Amendment jurisprudence was altered fundamentally following the issuance of Crawford. There, after a lengthy discussion of the history of the Sixth Amendment, the Court concluded that "where testimonial evidence is at issue, ... the Sixth Amendment demands ... unavailability and a prior opportunity for cross-examination." Crawford, 541 U.S. at 68, 124 S.Ct. 1354. Thus, the Crawford Court held that when the declarant is unavailable, out-of-court statements that are testimonial are inadmissible even if they meet an exception to the hearsay rules. Id. at 54, 124 S.Ct. 1354. In the present matter, it was undisputed that Gallegos is unavailable and Defendant had not had an opportunity to cross examine her. The question we must resolve, then, is whether Gallegos's statements during the 911 call (as recorded in the transcript of that call) are testimonial in nature.

{9} In Crawford, the United States Supreme Court did not establish a comprehensive definition for the term "testimonial," 541 U.S. at 68, 124 S.Ct. 1354, a necessary prerequisite to provide courts adequate guidance in identifying a testimonial statement. Rather, it left "for another day any effort to spell out" such a definition and concluded that "[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id. The issue presented in Davis—"whether ... [an] interrogation that took place in the course of [a] 911 call produced testimonial statements," Davis, 547 U.S. at 826, 126 S.Ct. 2266—required the Court to "more precisely" define the term testimonial and the qualities that render a statement testimonial in nature. Id. at 822, 126 S.Ct. 2266.

{10} This Court and our Supreme Court have previously adopted and discussed the principles established in Davis. See, e.g., State v. Lopez, 2007-NMSC-037, ¶¶ 20-21, 142 N.M. 138, 164 P.3d 19 (discussing the admissibility of non-testifying co-defendants' custodial statements); State v. Romero, 2007-NMSC-013, ¶¶ 4-17, 141 N.M. 403, 156 P.3d 694 (evaluating an unavailable witness's statements to a sexual assault nurse examiner in light of Davis and concluding that the statements in question were testimonial in nature). The present matter, however, requires us, as a matter of first impression, to evaluate the principles announced in Davis in the context of statements elicited during a 911 call. As it is from Davis that we derive analytical guidance to resolve the current matter, it is to Davis we turn.

Davis and the Definition of Testimonial

{11} Davis consolidated two appeals: Davis v. Washington, a case from the Supreme Court of Washington, and Hammon v. Indiana, a case from the Indiana Supreme Court. Davis, 547 U.S. at 817-21, 126 S.Ct. 2266. In both cases, the state supreme courts allowed incriminating statements of unavailable victims into evidence over the defendants' objections that admission of such evidence violated the Confrontation Clause of the Sixth Amendment to the United States Constitution. Id. at 819, 821, 126 S.Ct. 2266. The facts of Davis, the Washington case, are similar to the present matter: a victim of domestic violence (Michelle McCottry) called 911 after she was attacked by the defendant (her former boyfriend). Id. at 817-18, 126 S.Ct. 2266. During the call, McCottry informed the operator of the identity of the defendant and described the attack. Id. McCottry did not participate in the subsequent criminal trial and, in her absence, the state submitted a recording of the 911 call. Id. at 819, 126 S.Ct. 2266. In Hammon, the Indiana case, the victim (Amy Hammon) was violently attacked by the defendant (her husband) at their home. Id. at 819-20, 126 S.Ct. 2266. After receiving a domestic disturbance report, the police arrived on the scene shortly after the incident. Id. at 819, 126 S.Ct. 2266. Hammon described the violence that the defendant committed to one of the police officers. Id. at 819-820, 126 S.Ct. 2266. Like McCottry, Hammon also did not participate in the criminal trial that ensued. Id. at 820, 126 S.Ct. 2266. In light of this fact, the court permitted the officer who spoke to Hammon to recount what she told him during the defendant's trial. Id. After setting forth additional clarification regarding what constitutes a testimonial statement, the United States Supreme Court...