State v. LopezState v. Lopez
1. Dеfendant was convicted of driving under the influence of intoxicating liquor or drugs (DWI), a fourth-degree felony, pursuant to
2. On appeal, Defendant raises five issues challenging the conduct of his trial and imposition of sentence. We reach only one in reversing his DWI conviction: whether the trial court committed reversible error in admitting the alleged out-of-court statement of Clara Lopez about whether Defendant drove the truck away from their home immediately prior to the accident. We hold that the alleged statement was not an identification of a person upon perceiving the person as contemplated by the evidentiary rule. Although the testimony could have been admitted for impeachment purposes under
FACTS
3. On September 20, 1994, a pickup truck registered to Defendant rolled over onto its side on McCormick School Road in Farming-ton, New Mexico. Defendant was seen at the accident scene by a responding poliсe officer. Officer McDaniel testified that there were two other people at the accident scene. Defendant told the officer that he had not been driving the vehicle. The officer reported that Defendant’s eyes were watery and bloodshot, his speech was slurred, and his breath smelled strongly of alcohol. Defendant submitted to a horizontal gaze nystagmus
4. Clara Lopez testified at trial about the evening of the accident. She testified that Defendant and two or three of his friends had been drinking at her home, that Defendant indicated to her that he intended to leave the house, and that they argued as a result. She stated that she was very angry with him and urged him to go to bed. At some рoint in the evening the group left. Clara Lopez testified that one of the group wanted them to drive Defendant’s truck to Denver because it had a new motor. She further testified that she thought that there had been two vehicles in the driveway. Clara Lopez also stated that she did not see who got into which vehicle or who was driving. She testified that she only heard tires spinning and saw the dust аnd gravel that the vehicles kicked up as they'pulled out of the driveway. Clara Lopez testified that a short time later Officer Neph Izatt of the Farmington Police Department came to speak to her at her mother’s house. Clara Lopez testified that she never told the officer that she had seen her husband drive away or that he had been the sole ocсupant of the truck. She explained that from where she was reported to have been standing, she would have been unable to see the driveway. After Clara Lopez testified, the State called Officer Izatt. Defendant objected that any testimony from the officer would be hearsay. Out of the hearing of the jury, a tender of the officer’s testimony was made and arguments аbout its admissibility were heard.
5. The State initially listed several possible grounds for admitting the officer’s testimony. These were Rule ll-801(D)(l)(a), Rule 11 — 801(D)(1)(e),
6.The triаl court then reviewed Rule 11-801 and suggested that the evidence might be admissible under Rule ll-801(D)(l)(c), which admits statements of identification of a person after perceiving the person as non-hearsay. Defendant objected that Clara Lopez’s alleged inconsistent statements were not introduced to identify him, but to prove that he was the driver and sole occupant of thе truck as it left the house immediately prior to the accident. The trial court noted that this testimony was likely to be the only evidence which would place Defendant as the driver of the vehicle. The trial court, citing State v. Barela,
DISCUSSION
Failure to Carry Evidence of Financial Responsibility
7. Defendant briefed only one issue specific to this charge. We can summarily address it. Defendant argues that the State violated the rule of Batson v. Kentucky,
Driving Under the Influence, Fourth or Subsequent Offense
8. We review evidentiary rulings of the trial court for abuse of discretion, subject to the proviso that the trial court has no discretion to admit inadmissible evidence. See State v. Bowman,
A. Identification Under Rule 11-801(D)(1)(c)
9. An out-of-court statement offered for the truth of the matter asserted is hearsay and is inadmissible evidence unless a specific exception applies. See State v. Rivera,
10. According to the United States Supreme Court, an out-of-court statement of identification of a person is reliable because “ ‘the earlier identification has greater probative value than an identification made in the courtrоom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness’ mind.’” Gilbert v. California,
11. The instant case involves testimony of a different character from that envisioned by the original drafters of
12. The application of Rule 11-801(D)(1)(c) to the officer’s testimony in this case does not comport with the intent of the rule. Clara Lopez’s statement as reported by the officer not only went to the identity of Defendant, but also placed him behind the wheel of the vehicle as its sole occupant as it drove away. The establishment of Defendant as the operator of the vehicle was a crucial element of the crime charged, and that element was very much in dispute. The admitted testimony therefore exceeded the scope of the rule.
13. The cases which address issues under Rule ll-801(D)(l)(c) do not aid us in addressing the issue in this ease, that is, what information is properly considered “identification.” See id. Thus, we confront what appears to be an issue of first impression. The Idaho Court of Appeals touched on this question in State v. Woodbury,
14.It is reasonable to apply a plain mеaning interpretation of “identification” where, as here, the circumstances under which out-of-court identifications have been admitted as nonhearsay are relatively consistent from case to case. The identification testimony that can be considered non-hearsay should be narrowly construed to comport with the intent of the rule. See Barela,
15. Here, to the contrary, Clara Lopez denied at triаl that she saw anything relating to the gist of the offense — the person driving the car. Had she testified at trial that she saw the offense, but identified a different person, we might have a different case. But she denied being in a position to see anything. Thus, her out-of-court statement was much more than an identification. It more properly was a description of the entire event.
16. As such, it fits morе closely the exception for prior inconsistent statements, often used when a key witness recants a prior narrative statement. The circumstances and the substance of the alleged identification in this case are unlike those intended to be admitted under Rule ll-801(D)(l)(c), but rather more closely resemble prior inconsistent statements not under oath. Such statements сannot be admitted as substantive evidence, but may only be used for purposes of impeachment. Therefore, we hold that the trial court improperly admitted Officer Izatt’s report of Clara Lopez’s testimony as identification. Cf. Barela,
B. Impeachment versus substantive use of testimony
17. The State initially listed several possible grounds for admitting the officer’s testimony.
18. We will generally uphold a trial court’s decision admitting evidence where it is admissible under any theory. See State v. Ballinger,
19. In this case, it would have been pointless for Defendant to request a limiting instruction, even though he was entitled to one, because the court had already ruled that the evidence was nonhearsay under Rule 11-801(D)(1)(c). The instruction would have been denied had it been requested. Thus, while the officer’s testimony served the impeachment purpose of contradicting Clara Lopez’s testimony, it also was used substantively as the only evidence to directly place Defendant as the driver of the truck. Its admission as nonhearsay by the trial court unfairly prejudiced Defendant because the jury was permitted to consider this important evidence for the truth of the matter asserted, and there was little other properly admitted evidence to sustain the verdict.
20. The admission of Officer Izatt’s testimony provided the only direct evidence that Defendant was driving the vehicle. Although Defеndant was found at the scene and owned the vehicle involved, the theory of the defense accounted for these factors. There were, in fact, other people at the accident scene when police arrived. From that time on, Defendant consistently maintained that he was not driving. Also, Clara Lopez testified that one of Defendant’s friends who was аt the house on the day of the accident wanted to take Defendant’s truck to Colorado because it had a new engine. That a jury could have convicted Defendant without the officer’s testimony does not render its admission harmless error. For error to be harmless, there must be:
“(1) substantial evidence to support the conviction without reference to the improperly admitted evidence, (2) such a disproportionate volume of permissible evidence that, in comparison, the amount of improper evidence will appear so min[u]scule that it could not have contributed to the conviction, and (3) no substantial conflicting evidence to discredit the State’s testimony.”
Sanchez v. State,
21. Due to the lack of other direct evidence placing Defendant as the driver of the vehicle, as well as the existence of other explanations for the circumstantial evidence, we are unable to say in this particular case that the improperly admitted testimony did not contribute to the conviction. See Sanchez,
22. In sum, we are persuaded that the scope of this particular evidence, when considered in context, went beyond the intent of the evidentiary rule, Rule ll-801(D)(l)(c), that is limited to the admission of an identification as nonhearsay. Instead, this evidence went to prove essential elements of the crime
CONCLUSION
23. The felony conviction for driving under the influence of intoxicating liquor or drugs is reversed and remanded for a new trial. Defendant’s misdemeanor conviction for failure to carry evidence of financial responsibility is affirmed.
24. IT IS SO ORDERED.