State v. Lopez, 150 N.M. 179

Lopez was convicted by a jury of first-degree felony murder with first-degree criminal sexual penetration as the underlying felony and faces a life imprisonment sentence.
Victim Crystal Calderella was last seen with Lopez on April 12, 2001; her body was found April 15 with injuries and semen identified as Lopez's.
At a preliminary hearing, Greg Romero testified; the State could not locate him for trial and sought to introduce his testimony via a recorded preliminary hearing under Rule 11-804.
Defendant cross-examined Romero at the preliminary hearing; the defense theory paralleled trial defenses, focusing on whether Lopez raped and murdered Victim.
The State impeached Romero with Barbara Olguin’s testimony about a prior inconsistent, out-of-court statement implicating Lopez in rape, after Romero’s preliminary testimony was played for jurors.
The district court instructed the jury that Olguin’s testimony was impeachment only, but this sequence led to reversal because the impeachment relied on otherwise inadmissible hearsay.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Romero's preliminary hearing testimony was properly admitted under Rule 11-804	State asserts availability and similar-motive cross-examination satisfied.	Admission violated cross-examination rights and hearsay rules.	Abuse of discretion; inadmissible as improper use of hearsay via impeachment.
Whether admission of Romero's testimony violated the Confrontation Clause	Confrontation satisfied because there was an opportunity for cross-examination at preliminary hearing.	Unavailable witness and cross-examination did not meet constitutional requirements given the state’s use.	Confrontation Clause not violated where the defendant had prior opportunity to cross-examine the witness.
Whether Olguin's testimony to impeach Romero was admissible as impeachment of a prior inconsistent, non-oath statement	Impeachment using prior inconsistent statements is permissible to challenge credibility.	Using Olguin to introduce inadmissible hearsay as substantive evidence through impeachment is improper.	Improper use; the primary purpose was to introduce hearsay, not impeachment; reversible error.
Does the improper impeachment require reversal and remand for a new trial	Convictions should be upheld if error is harmless.	Error was reversible given the prejudicial effect on the jury.	Convictions reversed and remanded for a new trial.

State v. Henderson, 139 N.M. 595, 136 P.3d 1005 (2006-NMCA-059) (preliminary hearing testimony may be admitted if witness is unavailable and opportunity to cross-examine exists)
State v. Gonzales, 113 N.M. 221, 824 P.2d 1023 (1992) (similar motive to cross-examine at preliminary hearing and trial required)
State v. McClaugherty, 133 N.M. 459, 64 P.3d 486 (2003-NMSC-006) (hearsay rule exceptions and evidence admissibility standards applied to Rule 11-804 analyses)
State v. Brown, 126 N.M. 338, 969 P.2d 313 (1998-NMSC-037) (impeachment of own witness; primary purpose must be substantive, not just impeaching hearsay)
State v. Varela, 128 N.M. 454, 993 P.2d 1280 (1999-NMSC-045) (impeachment of witness may be used for substantive matters when evidence is relevant)
State v. Davis, 97 N.M. 130, 637 P.2d 561 (1981) (impeachment rules permit use of prior inconsistent statements)