State v. Gallagher, A-1-CA-36286

Defendant Robert J. Gallagher was convicted of trafficking methamphetamine and conspiracy to traffic methamphetamine following a controlled buy arranged by an informant.
The informant met Gallagher in a hotel on May 27, 2014; Gallagher offered to sell drugs and later met the informant and handed/attempted to hand over methamphetamine.
During pre-buy interactions, a woman answered the door for Gallagher, told the informant Gallagher was not there, and offered to get drugs from someone else — she said she would “go get drugs” and called a male who later facilitated the transaction.
At trial the State introduced the woman’s statement; defense argued the statement was hearsay and was used substantively to prove Gallagher’s involvement in a conspiracy.
The Court of Appeals issued a proposed summary disposition to affirm; Gallagher filed a memorandum in opposition focusing on the evidentiary/hearsay issue (he did not dispute the court’s proposed disposition on ineffective assistance).
The panel concluded the woman’s statement was not offered for its truth (thus not hearsay), and in any event any erroneous use would have been harmless given other direct evidence of Gallagher’s involvement.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility/hearsay of woman’s statement	Statement not hearsay because it was not offered for its truth	Statement was hearsay and used substantively to prove Gallagher’s conspiracy involvement	Court: statement was not hearsay as used; admission proper
Harmlessness of any hearsay error	Even if error, it was harmless given evidence Gallagher handed/attempted to hand methamphetamine	Jury must have relied on the woman’s statement to convict despite Gallagher’s claim of personal-use transaction	Court: any error harmless; no reasonable probability of affecting verdict
Ineffective assistance of counsel	State implicitly maintained conviction should stand	Gallagher raised ineffective assistance earlier but did not contest in memorandum in opposition	Court: issue not contested on appeal and thus not addressed; prior proposal to affirm stands

State v. Gallegos, 141 N.M. 185, 152 P.3d 828 (2007) (appellate court may affirm district court if correct for any reason absent unfairness to appellant)
State v. Tollardo, 275 P.3d 110 (N.M. 2012) (non-constitutional error is harmless when there is no reasonable probability it affected the verdict)
Taylor v. Van Winkle’s IGA Farmer’s Mkt., 122 N.M. 486, 927 P.2d 41 (1996) (issues not contested in memorandum in opposition are abandoned)
State v. Foxen, 130 N.M. 670, 29 P.3d 1071 (2001) (fact finder may reject defendant’s version of events)