State v. Toney, 26,618.

• Decision Date: 01 February 2002
• Docket Number: No. 26,618.,26,618.
• Citation: 131 N.M. 558,40 P.3d 1002,2002 NMSC 3
• Parties: STATE of New Mexico, Plaintiff-Respondent, v. Michael TONEY, Defendant-Petitioner.
• Court: New Mexico Supreme Court

40 P.3d 1002

131 N.M. 558

2002 NMSC 3

STATE of New Mexico, Plaintiff-Respondent, v. Michael TONEY, Defendant-Petitioner.

No. 26,618.

Supreme Court of New Mexico.

February 1, 2002.

Gary C. Mitchell, P.C., Gary C. Mitchell, Ruidoso, NM, Garza Law Firm, Carmen E. Garza, Las Cruces, NM, Susan Gibbs, Santa Fe, NM, for Petitioner.

Patricia A. Madrid, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

SERNA, Chief Justice.

{1} Defendant Michael Toney was convicted following a jury trial of two counts of false imprisonment and one count of tampering with evidence. Defendant appealed a single issue, relating to a single count of false imprisonment, to the Court of Appeals: whether the trial court erred in admitting hearsay testimony, either under the Rules of Evidence or under the Confrontation Clause of the Sixth Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment. The Court of Appeals affirmed by memorandum opinion based on this Court's opinions in State v. Gonzales, 1999-NMSC-033, 128 N.M. 44, 989 P.2d 419,cert. denied, 529 U.S. 1025, 120 S.Ct. 1434, 146 L.Ed.2d 323 (2000), and State v. Torres, 1998-NMSC-052, 126 N.M. 477, 971 P.2d 1267. This Court then granted Defendant's petition for writ of certiorari. We affirm.

I. Facts

{2} The State charged Defendant with murder, false imprisonment, tampering with evidence, and various other crimes for his role in Ty Lowery's death. Defendant and several others were involved in an altercation with Lowery at Defendant's house. Lowery was shot at close range. Two witnesses, including Robert Aragon, an employee of Defendant, testified that Claudia Moreno shot Lowery. Adam Montoya, another employee of Defendant, took the wounded Lowery to a remote area and left him to die. Lowery's body was found at the remote location the following day. At trial, the State advanced the theory that Defendant ordered Moreno to shoot Lowery and then ordered Montoya to leave Lowery in an isolated area to die. The jury returned a verdict of guilty on two counts of false imprisonment and one count of tampering with evidence.

II. Discussion

{3} The sole issue presented to this Court is whether the trial court erred in admitting an out-of-court statement. Specifically, Defendant complains about Aragon's testimony concerning an out-of-court statement made to him by Montoya. Aragon had been at Defendant's house on the night of the shooting and left after witnessing the shooting. Aragon encountered Montoya the following day and testified that he asked Montoya what happened after he, Aragon, had left Defendant's house following the shooting. Aragon testified: "[Montoya] proceeded to tell me that he had driven [the victim] to the river on the direction from [Defendant], to leave [the victim] at the river." We note that this testimony implicitly contains two out-of-court statements: (1) Defendant's statement to Montoya to leave the victim at the river; and (2) Montoya's statement to Aragon that he took the victim to the river on Defendant's direction on the previous night. The first statement is not hearsay. Defendant's statement to Montoya was a directive or a command and was offered not for its truth but for the fact that it was made. See Rule 11-801(C) NMRA 2002; Jim v. Budd, 107 N.M. 489, 491, 760 P.2d 782, 784 (Ct.App.1987) (stating that "statements or conduct which are non-assertive are not hearsay," that "implied assertions are not hearsay," and that "[t]he words, `let the gates down against the chain,' is a direction and not an assertion that would either be true or false"); see also Fed.R.Evid. 801 advisory committee's note; cf. State v. Ross, 1996-NMSC-031, 122 N.M. 15, 20 n. 2, 919 P.2d 1080, 1085 n. 2

(concluding that a statement did not raise a "hearsay within hearsay" issue because the statement made by another to the declarant was not offered for its truth). Moreover, as the Court of Appeals observed, this statement would have been an admission by a party-opponent rather than hearsay even if it had been offered for its truth. Rule 11-801(D)(2)(a). The second statement identified above, however, is hearsay. Rule 11-801(C). The State offered Montoya's statement to Aragon under an exception to the hearsay rule, Rule 11-804(B)(3) NMRA 2002, and the trial court admitted the statement on this basis. Rule 11-804(B)(3) provides that a statement is not excluded by the hearsay rule if the declarant is unavailable and the statement "so far tended to subject the declarant to ... criminal liability ... that a reasonable person in the declarant's position would not have made the statement unless believing it to be true."

{4} Defendant does not challenge Montoya's unavailability. Defendant limits his claim of error to his contention that Montoya's statement was not a statement against penal interest. In particular, Defendant claims that Montoya's statement to Aragon shows blame shifting and is therefore inherently unreliable. According to Defendant, this statement shows that Montoya was asserting a duress defense to Montoya's involvement in the crime. Defendant also claims that Aragon had a motive to lie because he made a deal with the State, which also made the statement unreliable. Thus, Defendant claims that the trial court abused its discretion in finding that this was a statement against penal interest admissible under Rule 11-804(B)(3).

{5} As an initial matter, we point out that Aragon's motive to lie, as opposed to the declarant Montoya's, is wholly irrelevant to the question of the admissibility of Montoya's statement as an exception to the hearsay rule. Aragon testified in court and was subject to full and complete cross-examination. The hearsay rule is not concerned with the veracity of the testifying witness. "The test under the catch-all rules is whether the out-of-court statement—not the witness's testimony—has circumstantial guarantees of trustworthiness. The credibility of the witness, who is subject to cross-examination, is irrelevant to the trustworthiness analysis." State v. Williams, 117 N.M. 551, 561, 874 P.2d 12, 22 (1994).

{6} With respect to Defendant's argument that the statement was not against Montoya's penal interest, we believe that the trial court correctly ruled that the statement is admissible under Rule 11-804(B)(3). Montoya's reference to his own involvement in the crime clearly falls within the parameters of this exception to the hearsay rule. Montoya admitted his involvement in serious crimes, including murder, and a reasonable person acting under similar circumstances would not have done so unless believing the statement to be true. Defendant argues, however, that Montoya's specific reference to acting on Defendant's direction is not against Montoya's penal interest. Defendant's argument is contrary to this Court's holdings in Torres and Gonzales. Montoya's reference to Defendant is a "facially-neutral but contextually-incriminating detail[ ] [that] may be admitted if a reasonable person in the declarant's position would not have revealed [it] unless believing [it] to be true due to [its] strong tendency to subject the declarant to criminal liability." Torres, 1998-NMSC-052, ¶ 14, 126 N.M. 477, 971 P.2d 1267. As with the statements at issue in Torres and Gonzales, Montoya's statement implicated him in serious crimes. The part of the statement referring to Defendant would provide necessary context to explain Montoya's motive for taking the victim to the river. This part of the statement also supports a conspiracy between Montoya and Defendant. The detail of Defendant's involvement "would significantly aid law enforcement officials in securing criminal liability" against Montoya, the declarant. Torres, 1998-NMSC-052, ¶ 17, 126 N.M. 477, 971 P.2d 1267; accord Gonzales, 1999-NMSC-033, ¶ 11,

128 N.M. 44,

989 P.2d 419. Further, as with the declarant in Gonzales, Montoya "made his statement to an acquaintance in casual conversation. There is no indication that [he] did not understand his statement to be disserving or that [he] made his statement pursuant to self-interest or some other countervailing motive." 1999-NMSC-033, ¶ 34, 128 N.M. 44,

989 P.2d 419. Contrary to Defendant's assertion, there is no indication from Montoya's statement that Montoya believed that he acted under duress. Furthermore, there is no apparent reason for Montoya to have made a false assertion of duress to an acquaintance before becoming a suspect in the killing. We do not believe that Montoya's statement can reasonably be interpreted as shifting blame to Defendant.

{7} In short, Montoya's statement "so far tended to subject [him] to ... criminal liability... that a reasonable person in [Montoya's] position would not have made the statement unless believing it to be true." Rule 11-804(B)(3). Montoya's statement contains none of the dangers associated with out-of-court statements because his statement was unambiguous, it was genuinely contrary to his penal interest, it described events occurring on the night before the statement, and it concerned actions taken directly by Montoya. See Williams, 117 N.M. at 560-61,

874 P.2d at 21-22 (discussing "the four primary dangers of hearsay," including the danger that the witness misinterpreted the declarant, the danger that the declarant consciously lied, the danger that the declarant had a faulty memory, and the danger that the declarant misperceived events). The trial court did not abuse its discretion in admitting the statement under Rule 11-804(B)(3).

{8} Defendant also contends that the admission of Montoya's statement violates the Confrontation Clause in the Sixth Amendment to the United States Constitution, as applied to New Mexico through the Fourteenth Amendment. Although Defendant references the right of confrontation in the New Mexico Constitution, he neither cites the specific provision in the Constitution providing this protection nor...