State v. Lopez ( 2014 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 33,488
5 CHARLES LOPEZ,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
8 Donna J. Mowrer, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jorge A. Alvarado, Chief Public Defender
13 Santa Fe, NM
14 Steven J. Forsberg, Assistant Public Defender
15 Albuquerque, NM
16 for Appellant
17 MEMORANDUM OPINION
18 ZAMORA, Judge.
1 {1} Defendant has appealed from a conviction for trafficking a controlled
2 substance. We previously issued a notice of proposed summary disposition in which
3 we proposed to uphold the conviction. Defendant has filed a memorandum in
4 opposition. After due consideration, we remain unpersuaded. We therefore affirm.
5 {2} The pertinent background information was previously set forth in the notice of
6 proposed summary disposition. We will avoid undue reiteration here, focusing
7 instead on the content of the memorandum in opposition.
8 {3} Defendant renews his challenge to the admissibility of a video recording of a
9 controlled buy. Insofar as this issue was originally presented by reference to our
10 “silent witness” jurisprudence, we originally proposed to affirm on grounds that the
11 State made an adequate foundational showing, see generally State v. Glen Slaughter
12 & Assocs., 1994-NMCA-169, ¶¶ 5-6, 119 N.M. 219, 889 P.2d 254, and on grounds
13 that in the absence of audio content, concerns would not arise under the Confrontation
14 Clause. In his memorandum in opposition Defendant now indicates that there was
15 some audio content. [MIO 1] However, this does not alter our assessment. With
16 respect to the audible content of the recording, we note that “[d]efendant’s own
17 statements . . . were non-testimonial and [as such, their admission does] not violate the
18 Confrontation Clause.” State v. Telles, 2011-NMCA-083, ¶ 19, 150 N.M. 465, 261
19 P.3d 1097; see also State v. Hernandez, 2009-NMCA-096, ¶¶ 7, 16, 147 N.M. 1, 216
2
1 P.3d 251 (recognizing that a defendant’s own admissions generally do not present
2 Confrontation Clause concerns as long as they are authenticated and admitted through
3 a proper vehicle). To the extent that Defendant and the confidential informant “talked
4 freely with one another without police questioning,” we similarly posit that any
5 audible statements by the confidential informant were non-testimonial for
6 Confrontation Clause purposes, notwithstanding the clandestine recording. Telles,
7 2011-NMCA-083, ¶ 20. Nor do hearsay concerns arise. Defendant’s own statements
8 would fall within the exception for admissions by a party. See generally Rule
9 11-801(D)(2)(a) NMRA (stating that a party’s own admission is admissible
10 non-hearsay); see also Telles, 2011-NMCA-083, ¶ 24 (recognizing that a defendant’s
11 own statements in recorded conversations implicating himself in criminal conduct
12 were properly admitted under Rule 11-801(D)(2)(a)). Similarly, any recorded
13 statements by the confidential informant would appear to have been admissible to
14 provide context. See Telles, 2011-NMCA-083, ¶ 24; see also State v.
15 Castillo-Sanchez, 1999-NMCA-085, ¶ 23, 127 N.M. 540, 984 P.2d 787 (recognizing
16 that the other party’s statements in a conversation containing an admission by the
17 defendant were admissible since they were necessary to put the defendant’s statements
18 in context). As such, we remain unpersuaded that the admission of the recording was
19 erroneous.
3
1 {4} Defendant also renews his challenge to the fundamental fairness of the trial,
2 based on the State’s failure to secure the appearance of the confidential informant as
3 a witness. [MIO 2-3] In the notice of proposed summary disposition we suggested that
4 Defendant should have subpoenaed the witness if he wished to ensure her appearance.
5 Defendant asserts that insofar as he lacked a current address, this was not a viable
6 avenue. [MIO 2-3] Assuming this to be true, we remain unpersuaded that the
7 prosecutor violated his or her duty to see that Defendant received a fair trial. Insofar
8 as the State did not require her testimony, the State was under no obligation to call her
9 as a witness, and Defendant had no right to cross-examine her. See State v. Savage,
10 1992-NMCA-126, ¶ 12, 115 N.M. 250, 849 P.2d 1073 (observing that a defendant had
11 no right to cross-examine a confidential informant who did not appear as a witness).
12 Moreover, as we previously observed, Defendant has failed to establish that the
13 State’s conduct prejudiced him. See generally State v. Glasgow, 2000-NMCA-076,
14 ¶ 14, 129 N.M. 480, 10 P.3d 159 (“[T]he right to a fair trial is not impaired unless the
15 defendant can show prejudice.”), overruled on other grounds by State v. Tollardo,
16 2012-NMSC-008, 275 P.3d 110.
17 {5} Accordingly, for the reasons stated above and in the notice of proposed
18 summary disposition, we reverse and remand for further proceedings.
19 {6} IT IS SO ORDERED.
4
1 _______________________________
2 M. MONICA ZAMORA, Judge
3 WE CONCUR:
4 __________________________________
5 MICHAEL D. BUSTAMANTE, Judge
6 __________________________________
7 JONATHAN B. SUTIN, Judge
5