{1} Defendant Ramon Lopez was convicted by a jury of multiple crimes, including first-degree felony murder, contrary to NMSA 1978, Section 30-2-l(A)(2) (1994), with first-degree criminal sexual penetration (CSP), contrary to NMSA 1978, Section 30-9-ll(C)(2) (1995) (amended 2009), as the underlying felony. Defendant invokes this Court’s appellate jurisdiction over sentences for life imprisonment, contained in Article VI, Section 2 of the New Mexico Constitution and Rule 12-102(A)(1) NMRA. We address two of the issues Defendant has raised on appeal: whether Defendant’s right to confront witnesses who testified against him were violated by the admission of the preliminary hearing testimony of an unavailable witness, and whether the district court erred in allowing the State to impeach its own witness with otherwise inadmissible hearsay. We conclude that the district court committed reversible error by allowing the hearsay to be admitted under the auspices of the State’s impeachment of the preliminary hearing testimony of the unavailable witness.
{2} Crystal Calderella (Victim) last was seen alive the night of April 12, 2001, with Defendant, Greg Romero, and others who were consuming drugs and alcohol at Victim’s home in Socorro, New Mexico. On April 15, 2001, Victim’s body was discovered in her home, her clothes partially removed. There were bruises and contusions on Victim’s neck and lower legs, and blood on the back of Victim’s head. Semen, later shown to be Defendant’s, was found in Victim’s vagina. Defendant was charged with Victim’s murder after being arrested on an unrelated charge.
{3} At Defendant’s preliminary hearing, Romero testified under oath about the events that occurred during the evening of Victim’s death. Before trial, the State informed the district court that it was unable to locate Romero, who had absconded from probation in California, and explained the efforts that had been undertaken to locate him. The district court permitted the State to introduce Romero’s preliminary hearing testimony via tape under the hearsay exception for unavailable witnesses contained in Rule 11-804(A)(5) and (B)(1) NMRA. Defendant argues that the admission of Romero’s preliminary hearing testimony violated the Confrontation Clauses contained in the Sixth Amendment to the United States Constitution and Article II, Section 14 of the New Mexico Constitution.
{4} “We first determine whether the preliminary hearing testimony was properly admitted under the Rules of Evidence.” State v. Henderson,
{5} “A hearsay statement consists of an out-of-court statement offered to prove the truth of the matter asserted,” and is inadmissible as substantive evidence unless it
{6} Whether a party had an opportunity and similar motive to develop testimony must be determined on a case-by-case basis. Gonzales addressed a situation where the defendant had an opportunity to cross-examine a witness at a preliminary hearing, but at trial, when the witness was unavailable to testify, the defendant’s theory of his defense had changed from self-defense to identification.
{7} In Henderson, the preliminary hearing testimony of two unavailable witnesses was admitted at trial.
{8} In this case, the purpose of the preliminary hearing was to determine whether “there [was] probable cause to believe that the defendant committed an offense.” Rule 5-302(C) NMRA; see State ex rel. Whitehead v. Vescovi-Dial,
{9} Defendant’s motive at trial likewise was to demonstrate that he was not guilty of raping and murdering Victim. During both proceedings, Defendant’s motive was to discredit the State’s case and to argue that the evidence did not establish his guilt. We conclude, therefore, that because Defendant had an opportunity and similar motive to cross-examine Romero at the preliminary hearing as he did at trial, the district court did not abuse its discretion in admitting Romero’s preliminary hearing testimony at trial.
{11} Under the Sixth Amendment to the United States Constitution, all criminal defendants “shall enjoy the right ... to be confronted with the witnesses against him.” Testimonial statements satisfying the Rules of Evidence do not necessarily satisfy the requirements of the Confrontation Clause. Crawford v. Washington,
{12} Defendant had an opportunity to cross-examine Romero, and actually did cross-examine him, on the “statement that is now being offered into evidence against him.” Id. (emphasis omitted). At both the preliminary hearing and at trial, Defendant was facing the same charges, was represented by the same defense counsel, and had the same motive to cross-examine Romero. See id. ¶ 19. We conclude that the opportunity to cross-examine Romero at the preliminary hearing satisfied the demands of the Confrontation Clause of the Sixth Amendment. 1 The introduction of Romero’s testimony at the preliminary hearing, therefore, did not run afoul of the Rules of Evidence or the Sixth Amendment.
{13} Defendant next argues that the district court erred in permitting the State to impeach Romero’s preliminary hearing testimony with a prior inconsistent statement. In his preliminary hearing testimony, Romero denied that he told an acquaintance, Barbara Olguin, that he saw Defendant choke and rape Victim. After Romero’s preliminary hearing testimony was played for the jury, the State was permitted to call Olguin to impeach Romero’s statement. Before Olguin testified, the district court gave a limiting instruction to the jury, stating that her testimony was to be used solely for the purpose of impeachment. Olguin testified that a few weeks after Victim’s death, Romero told her that he saw a physical altercation between Defendant and Victim on the night Victim died and Victim hit her head on a table edge and was knocked unconscious. Olguin testified that Romero said he saw Defendant crawl on top of Victim, hold her by the mouth, choke her, and rape her.
{14} Admission of a prior inconsistent statement is within “the sound discretion of the trial court ... and will not be reversed absent an abuse of that discretion.” Davis,
{15} If offered for the truth of the matter asserted, Olguin’s testimony of Romero’s out-of-court statements would constitute inadmissible hearsay. See McClaugherty,
{16} Rule 11-607 NMRA “allow[s] a party to attack the credibility of its own witnesses.” Id. ¶ 21. Courts and commentators are in general agreement that a witness may not be called and then impeached solely for the purpose of evading the rules of evidence. See United States v. Logan,
{17} This Court, in State v. Brown, stated that a party may not call a witness for the primary purpose of impeaching a witness with a prior statement which otherwise would be inadmissible hearsay.
{18} Although this Court has not engaged in substantial analysis as to the meaning of “favorable” and “unfavorable” in Morton, Florida’s courts have reviewed the analysis and we look to their cases as instructive. See State v. Richards,
{19} Unfavorable testimony, on the other hand, is that which is “affirmatively harmful” to the proponent of the witness’s ease. See Brown,
{20} The State suggests that Romero’s testimony was both favorable and unfavorable to its ease against Defendant, and that Olguin’s testimony was proper for the impeachment of the unfavorable portion of Romero’s testimony. According to the State, Romero’s favorable testimony established the events of the last night of Victim’s life, identified Victim’s ear, and corroborated the testimony of other witnesses. See Varela,
{21} We are not convinced that the State introduced Romero’s testimony for the primary purpose of providing evidence material to its prosecution. Much of Romero’s “favorable” testimony pertained to innocuous events surrounding the purchase and use of drugs on the night of Victim’s death, to which other live witnesses testified at trial. Testimony concerning the purchase and use of drugs is immaterial in establishing Defendant’s guilt in Victim’s death. Moreover, Defendant largely conceded the events set forth in Romero’s testimony in his opening statements to the jury. Romero’s “unfavorable” testimony, that nothing “unusual” was afoot when he left Victim’s home on the night of her death, was consistent with the State’s theory of the case and leveled no affirmative harm in the State’s direction.
{22} The State knew with certainty before trial that the recorded preliminary hearing testimony contained Romero’s denial that he made statements to Olguin inculpating Defendant. Even if there had been anything in Romero’s preliminary hearing testimony that the State could plausibly claim it needed at trial, the State could have introduced that portion of the preliminary hearing testimony without introducing the denials that purportedly gave rise to the reason for introducing Olguin’s otherwise inadmissible hearsay. The State did not have a proper primary purpose of admitting Romero’s testimony to provide evidence material to its case. We agree with Defendant that the introduction of Romero’s testimony was for the purpose of impeaching that testimony with Olguin’s testimony
{23} For the foregoing reasons, we reverse Defendant’s convictions and remand the case to district court for a new trial.
{24} IT IS SO ORDERED.
Notes
. We do not reach Defendant's confrontation rights under Article II, Section 14 of the New Mexico Constitution as that argument was not preserved. See State v. Leyva,