STATE of New Mexico, Plaintiff-Appellee, v. Jerry TORRES, Defendant-Appellant.
No. 24,000.
Supreme Court of New Mexico.
Dec. 3, 1998.
1998-NMSC-052 | 971 P.2d 1267
Hon. Tom Udall, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, for appellee.
OPINION
SERNA, J.
{1} Defendant Jerry Torres appeals his convictions of first degree depraved-mind murder, see
I. Facts
{2} On the night of December 31, 1995, Defendant Torres attended a New Year‘s Eve party (the South Spruce party) in Roswell, New Mexico. Sometime before midnight, occupants of a passing car fired several gunshots in the direction of the South Spruce party. Shortly thereafter, several individuals from the South Spruce party drove to another party (the West Deming party) several blocks away, and two people, one with a shotgun and one with a nine-millimeter pistol, fired into a crowd standing in the front yard. The latter shooting resulted in the death of Robert Bonilla and injuries to Elizabeth Galindo and Billy Ray Castillo. Police later learned that a nine-millimeter gun caused the death and the injuries to these individuals. The State accused Defendant Torres of firing the nine-millimeter gun into the crowd and charged him with, inter alia, depraved-mind murder.
{3} At trial, the State introduced the testimony of several witnesses from the West Deming party. The witnesses identified the car and described the shooting, testifying that one of the assailants yelled, “Westside,” which was allegedly a gang reference. The witnesses, however, were unable to identify the assailants. The State also introduced the testimony of Russell Lueras. Lueras testified that he attended the South Spruce party, which he described as being a Westside gang party and which was held at Jimmy Barela‘s house. At the time of the first shooting, Defendant Torres, Lueras, Earsley Chico Barnett, and Jimmy Barela were standing outside and heard the gunshots. After determining that the bullets had hit an acquaintance‘s van, Lueras shined the lights of his car on the van to get a closer look. At that time, unidentified individuals in a car drove by to tell them where the other car had gone. After Defendant Torres and Chico Barnett got into his car, Lueras then drove to the West Deming party. Lueras testified that, when he stopped across the street from the party, Defendant Torres exited the driver‘s side door from the backseat, with Lueras
{4} The State also called Chico Barnett to testify regarding the shooting at the West Deming party. At the time he testified, Barnett had already pleaded guilty to two counts of aggravated battery, one count of aggravated assault, and one count of shooting at a dwelling in connection with the shooting at the West Deming party and had been sentenced to twelve years imprisonment. Barnett testified that he had no agreement with the State for his sentencing or in return for his testimony against Defendant Torres. He testified that he attended the party at South Spruce, that he got into a car with other people, and that they then drove to the West Deming party. Barnett also testified that he had a shotgun and that he fired the shotgun one time at the West Deming party. However, when the prosecution asked whose car it was, who was driving, who else was in the car, whether Defendant Torres had been in the car, and whether anyone else had fired a gun, Barnett repeatedly responded that he did not remember.
{5} The State attempted to refresh Barnett‘s memory by showing him a transcript of an audio recording of his statement to the police made two days after the shooting and eventually, outside the presence of the jury, by playing the tape for him. Barnett testified that he gave the statement to the police, but he did not remember more detail about the shooting even after hearing the statement. After this failed attempt at refreshing Barnett‘s memory, the State sought to introduce the recording into evidence as a statement against Barnett‘s penal interest. See generally
{6} In his statement to the police, Barnett gave a more detailed account of the shooting than he did at trial. He told the police that, while he was at the South Spruce party, a small white car drove past and someone inside the car fired a gun, hitting a nearby van. After someone ascertained that the car had gone to the West Deming party, Barnett and Defendant Torres got into Lueras‘s car, and all three of them drove to the West Deming party. Barnett stated that he was sitting in the passenger seat and that Defendant Torres was sitting in the backseat. Once they arrived at the West Deming party, Defendant Torres and Barnett got out of the car, with Barnett going around the back and Defendant Torres exiting the driver‘s side, which faced the party. Barnett told the police that he had a shotgun, which he described in some detail, and that he fired the shotgun one time into a crowd of about fifteen or twenty people outside at the party. He also told the police that Defendant Torres yelled, “Westside,” and then fired a nine millimeter several times into the crowd. Finally, he told police that he did not learn that someone had been hit by the gunshots until hearing it on the news that night or the next day.
{7} Before introducing the recorded statement into evidence, the State offered the testimony of Detective John Wayne Davis, who had been present for Barnett‘s statement. Detective Davis testified that he issued Miranda warnings to Barnett and then took his statement. He identified the State‘s exhibit as the tape of the interview. He also testified that the police had not offered any leniency toward Barnett in exchange for his statement. He further testified that Barnett was not told which weapon had killed Bonilla and that the type of weapon producing the fatal shot had not been publicized at the time of the statement.
{8} Defendant Torres‘s counsel objected to the admission of the audio recording on the grounds that it violated his right to cross-examine the witness, that the statement
II. Statements Against Penal Interests
{9} Torres contends that the trial court erroneously admitted Barnett‘s statement under
{10}
if the declarant is unavailable as a witness ... [and the] statement ... was at the time of its making so far contrary to the declarant‘s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another that a reasonable person in the declarant‘s position would not have made the statement unless believing it to be true.
Torres urges this Court to follow the United States Supreme Court‘s analysis of
{11} In Williamson, the Court reviewed the admissibility of a statement by a participant in a crime, made while in the custody of law enforcement officials following the declarant‘s arrest, which described the participant‘s and the defendant‘s respective involvement in the crime. 512 U.S. at 596-97, 114 S.Ct. 2431. The Court first determined that the word “statement” in federal
{12} Of course, we are not bound in our interpretation of our Rules of Evidence by the United States Supreme Court‘s interpretation of analogous provisions in the
a narrative‘s precise statement against penal interest and related, collaterally neutral statements are admissible subject to two limitations: 1) the trial court should exclude statements that are so self-serving as to be unreliable and 2) if the trial court determines that the declarant had a significant motivation to curry favorable treatment, then the entire narrative is inadmissible.
Id. at 572. Similarly, both the Supreme Court of Virginia and the Ohio Court of Appeals have declined to adopt the statement-by-statement analysis articulated in Williamson. See Chandler, 455 S.E.2d at 225 (”Williamson ... concerned the interpretation of the
{13} Despite the fact that Williamson is not controlling in our analysis of
{14} In Williamson, the Court held that collateral statements are not admissible as statements against penal interest under federal Rule 804(b)(3). See 512 U.S. at 600-01, 114 S.Ct. 2431. As the Court ultimately concluded in Williamson, we believe the determinative inquiry under
Even statements that are on their face neutral may actually be against the declarant‘s interest. “I hid the gun in Joe‘s apartment” may not be a confession of a crime; but if it is likely to help the police find the murder weapon, then it is certainly self-inculpatory. “Sam and I went to Joe‘s house” might be against the declarant‘s interest if a reasonable person in the declarant‘s shoes would realize that being linked to Joe and Sam would implicate the declarant in Joe and Sam‘s conspiracy. And other statements that give the police significant details about the crime may also, depending on the situation, be against the declarant‘s interest.
Id. We believe this language in Williamson clarifies that plainly self-inculpatory remarks need not be introduced in the absence of necessary context. Under
{15} Within this analytical framework, we turn to the trial court‘s admission of Barnett‘s statement under
{16} Torres does not argue on appeal that Barnett was not unavailable as that term is defined in
{17} Barnett told the police that he got into a car with two other individuals, that he was armed with a loaded weapon, that he had the intention of shooting his gun once he got to the West Deming party, and that he and Torres fired into the crowd in unison. These statements to the police could have subjected Barnett to a number of criminal offenses, including shooting at an occupied building, see
{18} Torres points out that, when asked if he had thought about talking to someone after learning that people at the party had been shot, Barnett responded, “I kinda wanted to but I was, I didn‘t know if I had hit someone or if [Torres] had hit someone. So I didn‘t really want to say nothing.” This statement, Torres argues, could be interpreted to mean that Barnett had a subjective belief that the level of criminal liability would depend on which gun produced the fatal shot. While we agree that subjective beliefs are relevant in evaluating reliability and admissibility under
{19} A careful examination of the narrative Barnett gave police demonstrates that each statement could be used to prove the necessary elements and provide the necessary context in securing his criminal liability for depraved-mind murder and other crimes in connection with the shooting at the West Deming party. Cf. Newton, 966 P.2d at 579 (relying on accessory liability as demonstrating that a statement is against penal interest); Chandler, 455 S.E.2d at 225 (relying on the fact that the declarant‘s statements demonstrated “knowledge of and complicity in the criminal act and exposed [the declarant] to liability as an accessory to the crimes“). We believe that reasonable persons in Barnett‘s position would not have subjected themselves to such severe criminal liability unless believing each of the statements to be true. Therefore, we conclude that the trial court did not abuse its discretion in admitting the statements.
III. Right of Confrontation
{20} Torres also contends that the admission of Barnett‘s out-of-court statement violated his right of confrontation. The United States Constitution and the New Mexico Constitution provide that criminal defendants have a right “to be confronted with the witnesses against” them.
{21} “The Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him [or her], and the right to conduct cross-examination.” Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 94 L.Ed.2d 40 (1986) (plurality opinion). Because Barnett testified at trial, there is no question that Torres‘s right to face Barnett was sufficiently satisfied. Torres argues, however, that his right to cross-examine Barnett was violated because Barnett‘s lack of memory made any attempt at cross-examination fruitless. We disagree.
{22} The United States Supreme Court has made it clear that, under the
{23} Since Green, however, the United States Supreme Court has definitively resolved this issue for purposes of the federal Confrontation Clause. In United States v. Owens, 484 U.S. 554, 556, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988), the accused attacked the use of a witness‘s out-of-court statement in response to the witness‘s failed memory. The Court held that “when a hearsay declarant is present at trial and subject to unrestricted cross-examination” then “the traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witness‘s demeanor satisfy the constitutional requirements.” Id. at 560, 108 S.Ct. 838. The Court concluded that the witness‘s lack of memory, while changing the focus of cross-examination away from the foundation for the past belief, did not prevent the accused from using “other means of impugning the belief.” Id. at 559, 108 S.Ct. 838. Thus, the admission of the out-of-court statement did not violate the Confrontation Clause of the
{24} In this case, Barnett testified at trial and was subject to unrestricted cross-examination by Torres. Torres had the opportunity to question Barnett concerning his testimony that he fired a shotgun, as well as concerning Barnett‘s lack of memory, but chose not to do so based on a claim of futility. In addition, the jury had the opportunity to observe Barnett‘s demeanor with respect to the substance of his testimony and with respect to his claim that he did not remember who accompanied him during the shooting. Under these circumstances, it is clear that Barnett‘s out-of-court statement did not infringe upon Torres‘s right of confrontation under the
{25} Although the analysis in Owens resolves Torres‘s claim under the federal Confrontation Clause, we note that New Mexico has not previously addressed the declarant‘s presence on the witness stand and availability for unrestricted cross-examination in relation to the right of confrontation contained in
{26} The ability to cross-examine adverse witnesses is the primary means
{27} The Confrontation Clause sometimes requires the exclusion of evidence that would otherwise be admissible under an exception to the hearsay rule, depending upon the degree of reliability generally secured by the particular exception at issue. See Idaho v. Wright, 497 U.S. 805, 814-15, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). “Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” Roberts, 448 U.S. at 66, 100 S.Ct. 2531. In our analysis of the Confrontation Clause, we first distinguish earlier precedent that addresses hearsay statements of accomplices and that might tend to suggest that such statements are inherently unreliable. We then conclude that the hearsay exception for declarations against penal interests is firmly rooted.
{28} The United States Supreme Court has previously addressed the applicability of the Confrontation Clause to out-of-court statements implicating the accused made by an accomplice while in custody. “Over the years since Douglas [v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965)], the Court has spoken with one voice in declaring presumptively unreliable accomplices’ confessions that incriminate defendants.” Lee v. Illinois, 476 U.S. 530, 541, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986). In Lee, the trial court admitted a statement by an accomplice even though the statement was made while the declarant “not only had a theoretical motive to distort the facts to [the defendant‘s] detriment, but [while] he also was actively considering the possibility of becoming her adversary.” Id. at 544, 106 S.Ct. 2056. The Court deemed the portions of the statement inculpating the accused inherently unreliable “because those passages may well be the product of the codefendant‘s desire to shift or spread blame, curry favor, avenge himself, or divert attention to another.” Id. at 545, 106 S.Ct. 2056. The Court concluded that admission of the statement violated the Confrontation Clause because there were not “sufficient ‘indicia of reliability‘” to rebut “the weighty presumption against the admission of such uncross-examined evidence.” Id. at 546, 106 S.Ct. 2056. In applying the Supreme Court‘s decision in Lee, we previously relied on four factors in determining that an accomplice‘s in-custody statement satisfied the Confrontation Clause: (1) the absence of any offer of leniency for the declarant‘s statement; (2) the statement was against the declarant‘s penal interest; (3) the statement did not attempt to shift responsibility away from the declarant; and (4) the statement was corroborated by independent evidence. See State v. Earnest, 106 N.M. 411, 412, 744 P.2d 539, 540 (1987); see also Sanchez, 112 N.M. at 63-65, 811 P.2d at 96-98 (relying on Earnest). We believe,
{29} The Court in Lee addressed a statement admitted pursuant to Illinois law. In response to a suggestion that the statement was a declaration against interest, the Court determined that “[t]hat concept defines too large a class for meaningful Confrontation Clause analysis. We decide this case as involving a confession by an accomplice which incriminates a criminal defendant.” Lee, 476 U.S. at 544 n. 5, 106 S.Ct. 2056. By contrast, in our interpretation of
{30} In determining whether an exception to the hearsay rule is firmly rooted for purposes of the Confrontation Clause, we “consider the exception‘s historical longevity and widespread acceptance,” Ross, 122 N.M. at 24, 919 P.2d at 1089, and whether the exception is narrowly tailored in such a way as to limit admissibility to statements bearing adequate indicia of reliability. At common law, courts widely recognized that declarations against pecuniary interest constituted an exception to the hearsay rule. 2 Kenneth S. Broun et al., McCormick on Evidence § 316, at 336-37 (John William Strong ed., 4th ed. 1992) [hereinafter McCormick on Evidence]. Such declarations included acknowledgment of a debt, id. § 317, at 338, as well as “acknowledgment of facts which would give rise to a liability for unliquidated damages for tort or seemingly for breach of contract,” id. at 339 (footnote omitted). Common law courts routinely admitted these statements because the fact that individuals would be unlikely to damage their own interests gave such statements “the safeguard of special trustworthiness justifying most of the exceptions to the hearsay rule.” Id. § 316, at 336. As a result of this “longstanding judicial and legislative experience in assessing [its] trustworthiness,” it is without question that the exception for declarations against pecuniary or proprietary interests is a firmly rooted exception to the hearsay rule and poses an insignificant risk of unreliability under the Confrontation Clause.
{31} Nonetheless, common law courts did not extend the application of this exception to declarations against penal interests. In rejecting this common law distinction, however, the drafters of the
{32} For these reasons, we join a growing number of jurisdictions5 and conclude that
IV. Conclusion
{33} We adopt the United States Supreme Court‘s interpretation of federal
{34} The Confrontation Clause requires that defendants have a meaningful opportunity to confront the witnesses against them. We conclude that Barnett‘s presence on the witness stand and his availability for unrestricted cross-examination satisfied the Sixth and Fourteenth Amendments to the United States Constitution. Additionally, we conclude that the exception to the hearsay rule for statements against penal interest found in
{35} IT IS SO ORDERED.
BACA, MINZNER and MCKINNON, JJ., concur.
FRANCHINI, Chief Justice (dissenting).
{36} I DISSENT.