Santana (Angel) v. State ( 2015 )

 neck." Defense counsel objected on hearsay and Sixth Amendment
grounds. The State asserted that Hanna's testimony regarding his
conversation with Joyner was admissible to show the course of the
investigation and was not offered for the truth of the matter asserted,
contending that the testimony merely showed how the detective was
affected by statements and explained his actions during the course of his
investigation. The district court agreed.
An out-of-court statement offered to prove the truth of the
matter asserted is hearsay and is inadmissible where an exception does
not apply. NRS 51.035; NRS 51.065; Ramirez v. State, 114 Nev. 550, 558,
958 P.2d 724, 729 (1998). Additionally, if hearsay is "testimonial," as
when it is "made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for
use at a later trial," the Confrontation Clause prohibits its admission at
trial unless the declarant is unavailable and the defendant has had a prior
opportunity to cross-examine the declarant. Crawford v. Washington, 541
U.S. 36, 52, 59 (2004) (internal quotation marks omitted). While
testimony offered to show the course of an investigation that is not offered
to show the truth of the matter asserted may be admitted as non-hearsay,
Wallach v. State, 106 Nev. 470, 473, 796 P.2d 224, 227 (1990), evidence
that only serves to identify the defendant as the guilty party violates the
Confrontation Clause and cannot be admitted as course-of-investigation
testimony, Taylor v. Cain, 545 F.3d 327, 335 (5th Cir. 2008).
Joyner's statements to Hanna were clearly testimonial
because a reasonable observer would anticipate that the statements to a
police detective in the context of a murder investigation could be used in a
later trial. See Crawford, 541 U.S. at 52. Especially when considered in
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light of the State's opening statement that described how Joyner identified
Santana as the gunman and described this particular tattoo and the
district court's having Santana display his tattoo shortly after this line of
questioning, Hanna's testimony served principally to prove the truth of
the matter asserted, that the gunman had this particular neck tattoo and
that Santana was guilty of the crimes charged because the tattoo
identifies him as the guilty party. The record shows that Santana was
already a suspect when Hanna interviewed Joyner and does not show
investigative steps taken as a result of the tattoo evidence. Thus, the
course-of-investigation exception did not apply, see Taylor, 545 F.3d at
335, and the testimony restating Joyner's statement was impermissible
hearsay, see Wallach, 106 Nev. at 473, 796 P.2d at 227. Hanna need not
have directly quoted Joyner, as the jury could readily infer the substance
of Joyner's statement. See Ocampo v. Vail, 649 F.3d 1098, 1111 (9th Cir.
2011) (holding that the Confrontation Clause applies to an out-of-court
statement when the jury is likely to infer its substance); United States v.
Silva, 380 F.3d 1018, 1020 (7th Cir. 2004) ("Under the prosecution's
theory, every time a person says to the police 'X committed the crime,' the
statement (including all corroborating details) would be admissible to
show why the police investigated X. That would eviscerate the
constitutional right to confront and cross-examine one's accusers."). Thus,
the district court erred in admitting testimony that was impermissible
hearsay and violated the Confrontation Clause. See Chavez v. State, 125
Nev. 328, 339, 213 P.3d 476, 484 (2009) (reviewing Confrontation Clause
violations de novo and evidentiary rulings for an abuse of discretion).
Confrontation Clause errors are reviewed for harmless error.
Medina v. State, 122 Nev. 346, 355, 143 P.3d 471, 476 (2006). To hold a
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federal constitutional error harmless, the court must be able to conclude
that it was harmless beyond a reasonable doubt by determining beyond a
reasonable doubt that the error did not contribute to the verdict. Id. at
355, 143 P.3d at 477 (citing Chapman v. California, 386 U.S. 18. 24 (1967),
and Sullivan v. Louisiana, 508 U.S. 275, 279 (1993)). When reviewing
Confrontation Clause errors for harmless error, the United States
Supreme Court has identified several relevant factors, including the
importance of the testimony to the State's case, whether the testimony
was cumulative, whether other evidence corroborated the witness's
testimony, and the overall strength of the State's case. Id.
While Santana made incriminatory statements during a police
interview, he also made numerous assertions that are most likely false,
such that the jury was required to distinguish the credible from the
incredible. Santana stated that he owned a gun of the same caliber as
that used in the shooting, that he got his gun and chased a group of people
who should not live, that he was angry unlike ever before, that he shot at
a group of people including those who had disrespected his family, that "I
know I got two black males," that he went to Mexico because he was
unsure whether he would be able "to smell the air again," and that he did
not want to spend the rest of his life in prison. Santana, however, made
other statements that place the credibility of the above statements into
question, such as that he fought off and pursued three men who broke into
his brother's apartment and that he was being pursued by an
international gang where no evidence supports the existence of the break-
in, the fight, or the gang. He asserted that he used a gun of a different
caliber than that used in the crime, that he had no recollection of
encountering the paramedics, and that the gun was stolen from his car,
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which was also stolen. Santana also asked the interrogating officers to
‘``put him to sleep once and for all." The credibility of the only witness who
identified Santana as the perpetrator is suspect, as she recognized only his
eyes but not his hair or facial hair, conflicted with her grand jury
testimony, was drinking on the day of the shooting, admitted to drinking
vodka on the morning of her testimony, and noted that she regularly takes
the prescription medications Depakote, Adderall, and Klonopin. No other
witness identified Santana as the perpetrator or provided more than a
general physical description. No physical evidence connected Santana to
the crime scene. Connecting Santana's presence to the crime scene by
eyewitness evidence that the perpetrator bore the same tattoo as Santana
thus provided vital extrinsic corroboration of Santana's confession that
rebutted the defense arguments against the confession's credibility by
identifying him as the culprit. See Williams v. State, 544 N.E.2d 161, 163
(Ind. 1989). No independent evidence corroborates the substantive
evidence adduced by the impermissible testimony. See Blount v. State, 22
N.E.3d 559, 568 (Ind. 2014). The prejudice caused by this error is
magnified by the State's opening statement that Joyner recognized the
gunman as Santana and saw a tattoo of red lips on the gunman. While
the evidence the State adduced at trial—excluding the impermissible
portion of Hanna's testimony—may have been sufficient to support the
convictions, see Origel-Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378,
1380 (1998), it was not overwhelming, see Hernandez v. State, 124 Nev.
639, 653, 188 P.3d 1126, 1136 (2008); Taylor, 545 F.3d at 336-37. We
therefore cannot conclude, beyond a reasonable doubt, that Hanna's
testimony regarding Joyner's statement did not contribute to Santana's
conviction. Therefore, we ORDER the judgment of the district court
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REVERSED AND REMAND this matter to the district court for
proceedings consistent with this order.
J.
Saitta
J.
J.
cc: Chief Judge, Eighth Judicial District
Justice Law Center
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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