OPINION
{1} The dispositive issue in this case is whether Defendants were denied their constitutional rights of confrontation and cross-examination under the Sixth Amendment to the United States Constitution at their joint jury trial when interlocking confessions or statements of each Defendant were admitted into evidence and none of them testified. We determine that Bruton v. United States,
INTRODUCTION
{2} This case involves the convictions of Stephanie Lopez (Mother), Andrew Walters (Father), and Steven Lopez (Uncle) following a jury trial for the abuse resulting in the death and sexual assault of five-month-old Baby. Mother was convicted of negligently permitting child abuse resulting in death or great bodily harm, and negligently permitting child abuse not resulting in death or great bodily harm. NMSA 1978, § 30-6-1(D) (2005). Father was convicted of intentional child abuse resulting in death or great bodily harm, conspiracy to commit intentional child abuse resulting in death or great bodily harm, criminal sexual penetration of a child under thirteen years of age in the first degree, intentional child abuse not resulting in death or great bodily harm, and negligently permitting child abuse not resulting in death or great bodily harm. Section 30-6-1(D); NMSA 1978, § 30-28-2 (1979); NMSA 1978, § 30-9-1KA), (C) (2003). Uncle was convicted of intentional child abuse resulting in death or great bodily harm, conspiracy to commit intentional child abuse resulting in death or great bodily harm, and criminal sexual penetration of a child under thirteen in the first degree. Section 30-6-l(D); Section 30-28-2; Section 30-9-ll(A), (C). Grandmother and a second uncle were also convicted of various offenses, but they did not appeal. Mother, Father, and Uncle appeal.
BACKGROUND
{3} Baby lived in a bedroom with Mother, Father, and her 18-month-old brother in a mobile home owned by Baby’s grandmother and grandmother’s partner. Some weeks before Baby’s death, Mother’s twin brother (Uncle) moved into the bedroom. Mother, Father, and Baby’s brother shared a futon in the bedroom. When Baby did not sleep in her bounce chair in the room, she also shared the futon. Uncle slept on the floor. Father’s brother (second uncle) sometimes visited Baby’s family in the room.
{4} On July 19, 2002, Baby was taken to the emergency room where she died. The cause of death was cranial cerebral injuries due to the fact that she was a battered baby. She had bruising all over her head and ears and human bite marks on her face, neck, and body. A blunt force injury to Baby’s head in the last three days or less resulted in a large subdural hematoma on her brain. X-rays revealed Baby’s skull was fractured in two places, on two different bones, and that the fractures were 5-7 days old. Old blood was found during brain tissue examination, which meant that Baby had received a separate brain injury in the past. Baby’s optical nerves were filled with both fresh and old blood, which meant that she had been violently shaken on at least two occasions. X-rays of Baby’s torso revealed two broken ribs that were broken several weeks before her death. Baby also had recent bucket-handle fractures of her thighs and one of her arms. This type of fracture results from the limbs being forcefully twisted or yanked causing the growth plate to be separated from the bone, thus resembling the profile of a bucket handle being lifted from its horizontal position.
{5} In addition, Baby’s anus and vagina were both injured. Baby had a significant abrasion on her buttocks which went all the way into the buttocks which was consistent with sexual assault. Immediately after Baby was pronounced dead, a nurse observed that her anus gaped open with no muscle tone. At autopsy, the anal opening was dilated to a full inch. Internal examination showed an injury a half-inch to an inch inside the anal opening and vaginal injuries inside the labia minora, including three small injuries to the hymen.
THE STATEMENTS
{6} On July 19, 2002, around 10 a.m., Mother called 911 and reported that her baby was not breathing as a result of a fall around 3 a.m. The dispatcher overheard conversations between Mother and grandmother when the call was made. Baby was taken to the hospital and was pronounced dead at 11:10 a.m. At the hospital, Mother had conversations with a nurse, a social worker with the Children, Youth, and Families Department, and a Senior Field Medical Investigator for the Office of the Medical Investigator concerning Baby. Father also had conversations concerning Baby at the hospital with the same social worker and investigator. Mother, Father, Uncle, and Baby’s second uncle were interviewed later that day at the Doña Ana County Sheriffs Department.
A. Mother’s Statements
{7} Investigator Mark Perea of the Doña Ana County Sheriffs Department interviewed Mother. She told him that a few days before July 19, Uncle had thrown Baby up into the air and Baby had come down. Father had also thrown Baby up, and when he did so, Baby hit her head on the ceiling. She also said that Father dropped Baby while throwing her. Mother said she told Father two or three times to stop throwing Baby. Mother told Officer Perea that the night before, she had a few beers before falling asleep. Father and Baby’s two uncles stayed up in the room. When she awoke around 9:45 a.m., Baby was bruised, pale, and not breathing. When she asked Father what had happened, he told her that Uncle had thrown Baby up into the air, and that he found Baby on the floor at 7 a.m. and put her back in her bouncy. Mother also said she saw Father throw Baby as well. They took Baby into the living room and Father started CPR while Mother called grandmother. After calling grandmother, Mother called 911. When Officer Perea asked Mother about the bruises on Baby’s ears and bite marks on her body, she said the bruises may have been caused by the way Baby slept in her bouncy and that Baby’s 18-month-old brother had bitten Baby in the past.
B. Father’s Statements
{8} Father was interviewed by Officer Lin-dell Wright of the Doña Ana County Sheriffs Department, and they were later joined by Sergeant Ed Miranda. Father was transported from the hospital to the police station at 11:49 a.m. An officer drove him because he needed a ride. The interview took place in a room with the door closed because of the noise in the hallway, and Father was not given warnings pursuant to Miranda v. Arizona,
{9} After the break, Officer Wright told Father that Baby was dead, and Father broke down. Sergeant Miranda had interviewed the 911 dispatcher and hospital personnel, had taken photographs of Baby, and then joined the interview. Officer Wright decided to give Father Miranda warnings at this time because the detectives had gathered evidence that was inconsistent with his statement. Father was told he was still free to go, and no threats or promises were made to Father to induce him to continue the interview. Father carefully read and signed the sheet acknowledging receipt of his Miranda warnings before proceeding with the interview.
{10} After receiving the Miranda warnings Father admitted to throwing Baby into the air with Baby hitting her head on the ceiling four days before she died. Father admitted bruising Baby. “I didn’t mean for it to leave a bruise like that. Like I left her a bruise like that before, just from messing with her. [Mother] gets mad.” He subsequently admitted that the night before, he and Uncle were “playing a little rough” with Baby by throwing her into the air, with Baby hitting the ceiling, and being dropped onto the floor when he “missed” her. He identified a particular bruise on a photograph as being caused when Baby hit the ceiling and another when she landed on the floor as well as various bite marks he acknowledged he made. Father said Baby hit the ceiling three times and that he also dropped her “two or three times” on the floor. After Baby was dropped onto the floor, “[t]hen we just continued playing the game and then I was messing with her and everyone went to sleep.” Father said Baby cried when she was dropped onto the floor, and when he was asked what he did to calm her down, he answered, “I just kept throwing her in the air.”
{11} Father was also shown a photograph of Baby’s anus, and Father became very upset and profane, saying they were “not going to find any semen.” Father said he cleaned Baby’s butt with a baby wipe, wrapped the baby wipe around his left index finger, and put the wrapped finger into Baby’s anus up to the second knuckle at the middle of his finger. When he took his finger out, “[t]here was a little bit of blood on there.”
C. Uncle’s Statements
{12} In the meantime, Investigator Greg Boeglin of the Doña Ana County Sheriff’s Department interviewed Baby’s Uncle. Uncle at first only said that Mother, Father, and he (together with Baby) were in the room playing video games when Baby’s second uncle and a friend came in and joined them for some beers. After watching a movie and drinking beers, he went to bed at 2 a.m. He initially said he drank six beers, then later said it was ten. Nothing was wrong with Baby when he went to bed. When he awoke the next morning, he saw Baby, and did not notice anything. He then repeated he did not see any bite marks or anything wrong with Baby other than a little pink mark on her forehead. Finally, after Investigator Boeglin was informed about other interviews, including the one with Father, he asked Uncle whether he ever threw Baby up into the air. Uncle answered, “[s]ometimes we would[,]” and he acknowledged that Baby-had hit her head while being thrown. Uncle was asked if anyone threw Baby into the air the previous night, and he first answered, “[n]o, I don’t think so[,]” then changed to, “I don’t remember if I did.” On another occasion, Uncle said that he “was throwing her in the air,” but answered “I don’t think so” when Investigator Boeglin asked him if she was injured.
{13} Sergeant Edward Miranda decided to continue interviewing Uncle himself rather than trying to tell Investigator Boeglin everything he had just learned from Father’s interview. Sergeant Miranda asked Father to speak to Uncle before he started Uncle’s interview. Father agreed and told Uncle, “[g]o ahead and tell them the truth” and left. Ultimately, Uncle confessed that he joined Father in throwing Baby in the air, hitting her head on the ceiling, and dropping her on the floor. When Sergeant Miranda used the term “physical abuse,” Uncle became offended and said, “We didn’t physically abuse her. We were just playing with her.” Sergeant Miranda said: “Okay. So to make sure, what you’re telling me is you and [Father] were playing with [Baby] by throwing her up into the air and allowing her to fall onto the floor?” Uncle answered, “Yes.”
{14} Sergeant Miranda then showed Uncle a photograph of Baby’s anus. Uncle immediately said, “Oh, no. I didn’t do that. I didn’t do nothing like that.” Uncle asserted that neither Father nor any other males in the house were responsible for sexual abuse towards Baby. Sergeant Miranda therefore asked Uncle what he did with Baby. Uncle was equivocal and said he did not remember. Sergeant Miranda later asked, “Could it have been you?” Uncle answered: “Maybe. I don’t know.” Uncle asked, ‘What if I did do it?” and “What can happen to me?” Uncle then talked about how many beers he drank, and told Sergeant Miranda he could not remember starting the sex act but he remembered stopping it because he realized it was wrong. Later, Uncle said he remembered starting the act, and that Baby was awake at the time. Sergeant Miranda then asked point-blank: “Did you have sex with [Baby]?” Uncle answered: ‘Tes.”
D. Second Uncle’s Statements
{15} Investigator Boeglin also interviewed Baby’s second uncle. He told Investigator Boeglin he came home from work around 8:15 a.m. and heard Baby crying. Mother was making her a bottle. Later, grandmother woke him up and was hysterical. Father was crying and throwing up and Mother was giving Baby CPR. He told Investigator Boeglin that grandmother had recently seen Father throwing Baby up into the ah’, and grandmother told him, “If you don’t cut that shit out I’m going to take [Baby] away from you.”
THE MOTIONS FOR SEVERANCE AND TO SUPPRESS
{16} Prior to trial, the State filed a statement for joinder seeking a joint trial of all Defendants. In response, Father filed an opposition to the statement for joinder stating in part, “[e]ach of the Defendants may give statements that would be inadmissible against the other party and therefore a violation of each defendant’s right to cross-examine the witnesses against them.” Mother filed a motion for severance arguing in part that all defendants had given statements to law enforcement officers and specifically that Father and Uncle had made admissions of their own abusive or negligent conduct which would be inadmissible against Mother in a separate trial. Uncle joined in the motion for severance and he argued in part that “[t]here are statements and confessions which should be limited to the defendant who made them.”
{17} The severance question was heard by the trial court at a pretrial hearing. At the hearing, general assertions were made by counsel for Defendants that statements made by the others were accusatory to them and inadmissible hearsay. Defendants contended that admitting these statements into evidence would result in the admission of statements they could not cross-examine and that this would violate their confrontation rights. The trial court denied severance.
{18} Father renewed the motion for severance immediately prior to trial, and all Defendants renewed the motion for severance following opening statements. Defendants added at this time that Bruton would be violated by admission of their respective statements in a joint trial. Mother suggested that an appropriate alternative to severance would be to redact all the accusations Father made against her from his statements before admitting them into evidence. All motions were again denied, with the trial court stating that each Defendant had preserved the issue. Defendants were granted a continuing objection to the admission of statements made by each other.
{19} Father also filed a motion to suppress the statements he gave to Officer Wright and Sergeant Miranda, asserting the statements were involuntary and that he was entitled to receive Miranda warnings before the interview commenced. Since Father did not file the motion until the morning of the pretrial hearing and the trial court had not seen it, a ruling on the motion was deferred until the morning of trial. Following a hearing during the trial, the motion was denied.
{20} In its final instructions, the trial court instructed the jury that before it could consider Father’s statement and Uncle’s statement for any purpose, it must first determine that each such statement was given voluntarily. The jury was also told that Mother’s statement given to investigator Mark Perea could only be considered as evidence against her and not any other Defendant. Similarly, the jury was instructed that second uncle’s statement to Investigator Greg Boeglin could only be considered against him and not against any other Defendant.
ANALYSIS
{21} We first address Father’s motion to suppress and preservation before beginning our confrontation clause analysis. In determining whether Father’s motion to suppress was properly denied, we decide whether the law was properly applied to the facts, viewing the facts in the light most favorable to the State as the prevailing party, indulging all reasonable inferences in support of the trial court’s ruling, and disregarding all evidence and inferences to the contrary. See State v. Jason L,
{22} Further, we conclude that Defendants properly preserved for appeal their argument that their Confrontation Clause rights were violated when they were denied separate trials. See State v. Martinez,
A. Right of Confrontation and Cross-Examination
{23} We are thus squarely confronted with the question of whether Defendants’ Confrontation Clause rights were violated. This presents an issue of law which we review de novo. Id. at ¶ 14.
{24} We begin with cases leading up to Crawford. In Delli Paoli v. United States,
{25} Delli Paoli was overruled in Bruton,
{26} In Parker v. Randolph,
{27} The first view in Parker reasoned that a defendant’s own confession constitutes the most “damaging” and “probative” evidence against him.
{28} The second view expressed in Parker was that just because a defendant made an extrajudicial admission of guilt which was unchallenged before the jury “is not an acceptable reason for depriving him of his constitutional right to confront the witnesses against him.”
{29} The United States Supreme Court adopted the second Parker view when it decided Cruz v. New York,
{30} Finally, Crawford unequivocally and without exception holds that the admission of “testimonial evidence” to prove the truth of the matter violates the Confrontation Clause of the Sixth Amendment unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. Crawford,
{31} First, the State argues that the statements were admissible under Crawford because they were made in furtherance of a conspiracy to cover up the crime. We reject this argument. While Crawford notes that statements in furtherance of a conspiracy are not by then- nature “testimonial,”
{32} Secondly, the State argues, the statements were not offered for their truth, but to show that Defendants were making up lies to hide the crimes and their consciousness of guilt. Crawford specifically acknowledges that, “The [Confrontation] Clause ... does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.”
{33} In Street, the prosecutor relied on a detailed statement the defendant gave to police officers in which he admitted to burglary and murder.
{34} In Holmes, an attorney was convicted of being in a conspiracy with a court clerk to back-date and file a petition in a medical malpractice case he was handling to make it appear that the petition was filed within the statute of limitations.
{35} Finally, in Lewis, the defendant was interviewed by police officers in connection with two murders, and he initially denied all involvement.
{36} We must give effect to and apply the ever-increasing restrictions on the use of a co-defendant’s out-of-court statements that begin with Delli Paoli and end with Crawford. In this case, co-Defendants’ statements incriminating Defendants were admitted into evidence without an opportunity for cross-examination. Cruz is directly applicable because the statements made by Mother, Father, and Uncle to the police are not independently admissible. In this regard, Crawford specifically declares that Cruz is faithful to the framers’ understanding of the Confrontation Clause because it is a decision in which “[tjestimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Crawford,
B. Harmless Error
{37} While both Cruz and Crawford hold that the admission of a non-testifying co-defendant’s incriminating statement violates the Confrontation Clause, they both leave open the possibility that the admission of such evidence may nevertheless be harmless. Cruz,
{38} Our own Supreme Court guides us on how to determine whether the admission of a non-testifying co-defendant’s incriminating statement in violation of the Confrontation Clause may be considered as harmless error. These decisions are Johnson,
{39} In determining whether the error was harmless, we must be able to conclude beyond a reasonable doubt that the jury verdict would have been the same in the absence of the error by looking to the effect that the constitutional error had upon the guilty verdict in this particular case. Constitutional error is not harmless simply because there was substantial evidence to support the conviction. The fact that overwhelming evidence of a defendant’s guilt is otherwise present is not determinative because a criminal defendant has a constitutional right to have a jury decide guilt or innocence, not appellate court judges during review on appeal. Therefore, notwithstand-' ing the presence of overwhelming evidence of a defendant’s guilt, we still examine whether there is a “reasonable possibility” that the erroneous evidence “might have” affected the jury’s verdict. Johnson,
{40} In light of the realities recognized by the United States Supreme Court in Cruz that a co-defendant’s confession which interlocks with a defendant’s statement in material respects is not only extremely damaging to a defendant, but cannot be ignored by a jury in deciding a defendant’s guilt, it will be an exceedingly rare case, if one exists, where the erroneous admission of a co-defendant’s confession under these circumstances can be deemed harmless beyond a reasonable doubt. Our own Supreme Court has also expressly recognized these realities. In Alvarez-Lopez, our Supreme Court agrees that because a defendant’s own confession discloses not only how a crime was committed, but also his motive, its impact on the jury is profound to the extent that we may justifiably doubt a jury’s ability to put the confession out of its mind even if it is told to do so. “Like a defendant’s own confession, the incriminating statements of an accomplice often have a profound impact on the jury’s verdict.” Alvarez-Lopez,
{41} With these principles in mind, we cannot conclude that the Confrontation Clause violation in this ease was harmless beyond a reasonable doubt. First, the statements interlock in material respects. Mother’s statement establishes that Father and Uncle had in the past thrown Baby back and forth like a ball, striking her head on the ceiling and dropping her. On the night Baby received her fatal injuries, they were doing the same thing with Baby. Father’s statement not only corroborates Mother’s, he specifically adds that he and Uncle made Baby hit the ceiling and dropped her onto the floor while they were throwing her and that Mother knew it. Uncle also admits he and Father were throwing Baby, hitting her head on the ceiling, and dropping her. Baby’s second uncle said grandmother had recently seen Father throwing Baby into the air. Finally, both Father and Uncle confessed to committing acts constituting criminal sexual penetration upon Baby. Under the circumstances, each statement was corroborated by the other in a form that was immune from cross-examination, and no juror could reasonably be expected to isolate and consider each statement only in connection with the Defendant who made it. On this basis alone, we would be hard pressed to conclude that there is no “reasonable possibility” that the interlocking statements might have contributed to the conviction of each Defendant. See Johnson,
{42} Secondly, the closing arguments remove any possibility for us to conclude otherwise. In closing argument, the prosecutor asked the jurors to use each Defendant’s statement:
Remember that you are the judges of the facts. You decide who is telling the truth, who isn’t telling the truth, who has a motive for lying, who has a motive for covering up. Even when they give statements to the police. You decide who is telling the truth. If you keep in mind the police took many statements, and maybe you are wondering why. The main reason is they saw this baby girl at the hospital and they had a death, a death by child abuse and no one heard, no one saw, no one knew, and according to everyone in that house, no one is responsible, and the police were determined to find out what happened to this little girl, and that’s why once they were able to get a statement from one person that caused them to go to the other person and say, “Wait a minute, you are not telling us the truth, you need to tell us the truth, because [Father] is already telling us that you, too, were throwing it up.”
And he will give it up a little bit. They will go to the other one and say, “wait a minute, [Uncle],” and you can see why the police had to go back and forth, because clearly they were not going to be totally honest to the police. They had something to hide. They did not want the police to know. It wasn’t going to be a stretch. Someone in the house killed this baby girl. Someone between the hours of 10:00 at night on the 18th and 10:00 in the morning, 9:45 in the morning on the 19th, someone within that household killed that baby girl.
{43} The prosecutor then proceeded to use Father’s statement to argue that Mother and Uncle were guilty and Uncle’s statement to argue that Father was guilty. Uncle was prompted to make a motion for a mistrial during the prosecutor’s closing argument asserting that the prosecutor’s closing argument was urging the jury to use statements made by Defendants against each other. The motion was denied.
{44} In his closing argument, Father asserted that the police never listened to Father and what he was saying. Instead, they interrogated, suggested, intimidated, and asked leading questions to coerce Father into admitting what they wanted him to say. Father argued that he was under great stress and thus susceptible to mental coercion and the suggestiveness of the police officer’s interrogations. He contended that his stress was a result of waking up and finding Baby not breathing and subsequently being isolated from the rest of his family. Father asserted that his stress was exacerbated by the officers’ strategic actions in withholding the news of Baby’s death for several hours, consoling him upon informing him of her death, and then presenting him with the photographs taken of Baby after her death. In conclusion, Father argued that his defense was simple — that he did not do these things to Baby and tried to tell the police initially this was the case, but the police would not listen.
{45} Uncle’s closing argument focused on reasonable doubt. He pointed out he initially denied to the police officers any involvement in Baby’s abuse and emphasized that no forensic evidence established his involvement in Baby’s death. Uncle concluded, “What do we have left? Other than the forced and involuntary admissions in the statements that were taken?”
{46} In her closing argument, Mother emphasized that the forensic evidence at trial established that the bruises and bite marks on Baby could not be dated, supporting an inference that she did not know the complete nature and extent of Baby’s injuries. Since the bites and bruises could not be dated, and considering all of Baby’s injuries as inflicted the night before, all that was left was Mother’s denials of abuse given to Detective Per-ea. Mother argued, “What we are left with, because the investigation went in the direction it went in, there has been a distortion of the character and the motivations of [Mother].”
{47} In rebuttal closing argument, the prosecutor reiterated her theme of how she wanted the jury to consider Defendants’ statements. She said:
Defense counsel for [Father] said that ... if the police had only listened to the Defendants we might know who actually did this. I really can’t tell you how many times the police did statements of all the various people. I think six times for [Uncle], four times for [Father]. I mean, how many opportunities had to be given to these people to tell the truth? So to say “we might know who actually did this if they just listened,” well, they were listening, and they were figuring out who was lying to them, because then they’d have to go back, and say, wait a minute, your friend over here said you were there, and you just told me you weren’t there. Or, wait a minute, [Father] said that [Uncle], you were throwing the baby up, and you said you weren’t. So they were listening, unfortunately, to many lies at the beginning.
{48} The prosecutor specifically urged the jury to consider each Defendant’s statements against the other, and the statements corroborated and reinforced each other in ways that positively reinforced the prosecution’s case. The jury could not realistically be expected to ignore the interlocking statements in considering the guilt or innocence of the Defendant not making the statement, because each corroborated and reinforced what the Defendant himself or herself said. Furthermore, limiting instructions were only given in relation to the statements given by Mother and Baby’s second uncle. No limiting instructions were given in relation to the statements given by Father and Uncle, so the jury was free to consider those statements in considering the guilt of Mother and each other. Finally, none of the statements were subject to cross-examination.
{49} We cannot conclude there is no reasonable possibility that the interlocking statements could have contributed to the guilty verdicts of Mother, Father, or Uncle. Therefore, we hold that the constitutional error committed in these cases was not harmless.
REMAINING ISSUES
{50} Mother and Father both argue that the evidence is insufficient to support their convictions. Specifically, Mother argues that the evidence is insufficient to support a finding beyond a reasonable doubt that she knowingly and negligently and without justifiable cause placed Baby in a situation that endangered Baby’s life or health. Father argues that the evidence is insufficient to support a finding that he committed criminal sexual penetration of a child under thirteen years of age. We disagree and conclude that Mother’s own statement and the non-hearsay forensic evidence could constitute sufficient evidence to support guilty verdicts of negligent child abuse. We also conclude that Father’s own statement and the non-hearsay forensic evidence could constitute sufficient evidence to support a guilty verdict of criminal sexual penetration. See State v. Reyes,
{51} We do not address any of the other issues raised. An advisory opinion resolves a hypothetical situation that may or may not arise, see Weddington v. Weddington,
CONCLUSION
{52} Punishment for even the most heinous crime can only be imposed following a trial which complies with due process that is mandated by our constitution.
There are few subjects ... upon which [the United States Supreme Court] and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.
Pointer v. Texas,
{53} The convictions are reversed and the eases remanded with instructions to grant each Defendant a separate trial.
{54} IT IS SO ORDERED.