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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. 31,277
5 JOSEPH SOLIZ,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
8 Lisa C. Schultz, District Judge
9 Gary K. King, Attorney General
10 Margaret E. McLean, Assistant Attorney General
11 Joel Jacobsen, Assistant Attorney General
12 Santa Fe, New Mexico
13 for Appellee
14 Law Offices of Craig C. Kling
15 Craig C. Kling
16 San Diego, CA
17 for Appellant
18 MEMORANDUM OPINION
19 ZAMORA, Judge.
20 {1} Defendant, Joseph Soliz, appeals from his misdemeanor conviction for battery
21 on a household member, claiming the district court erred in refusing to admit two
1 letters purportedly written by Victim, who did not testify at Defendant’s trial, in which
2 she recanted the statements she made to a 911 operator. We conclude that the district
3 court did not abuse its discretion in excluding the letters for lack of authentication
4 pursuant to Rule 11-901(A) NMRA.
5 BACKGROUND
6 {2} On June 25, 2006, Defendant’s girlfriend (Victim), called 911 from a
7 neighbor’s house to report that Defendant had violently attacked her with a heavy
8 metal pole. Defendant was indicted on one count of aggravated battery against a
9 household member with a deadly weapon; two counts of aggravated assault against
10 a household member with a deadly weapon; and one count of battery against a
11 household member. The State dismissed with prejudice the aggravated assault counts
12 prior to trial.
13 {3} After Victim was excluded as a witness, Defendant filed two motions in limine
14 to exclude the statements that Victim made to the 911 operator under the
15 Confrontation Clause of the Sixth Amendment to the United States Constitution. The
16 district court granted Defendant’s motion and the State filed an interlocutory appeal.
17 We reversed, holding that the admission of the statements Victim made to the 911
18 operator would not violate Defendant’s rights under the Sixth Amendment because
2
1 the statements were nontestimonial. State v. Soliz, 2009-NMCA-079, ¶ 1, 146 N.M.
2 616, 213 P.3d 520.
3 {4} The case proceeded to trial. On the morning of trial, Defendant filed a motion
4 in limine seeking to admit two handwritten letters allegedly written by Victim in
5 which she denies the accuracy of the information she told to the 911 operator and asks
6 that the charges against Defendant be dropped.1 In one of the letters, the writer states,
7 “I tripped over the curtain rod . . . and I fell and hit my elbow on the dresser.” In the
8 other letter, the writer states, “I ran towards [Defendant] and . . . I tripped and hit my
9 elbow on the coffee table.” Defendant argued that the letters constituted “an admission
10 that [Victim] lied to police” and were admissible under Rule 11-806 NMRA and Rule
11 11-613 NMRA.
12 {5} After hearing argument from counsel, the district court stated it was “inclined
13 to exclude [the letters]” and noted “we don’t even know that they can be authenticated
14 or any foundation laid.” Defense counsel stated he intended “to authenticate these
15 letters through testimony of [D]efendant, who is very familiar with [Victim’s]
1
16 “A ‘motion in limine’ is a term used to describe a written motion which is
17 usually made before or after the beginning of a jury trial for a protective order against
18 prejudicial questions and statements.” Proper v. Mowry, 1977-NMCA-080, ¶ 17, 90
19 N.M. 710, 568 P.2d 236 (emphasis added) (emphasis, internal quotation marks, and
20 citation omitted).
3
1 handwriting and they have lived together.” The district court “agree[d] with the State”
2 about “the difficulties that are being raised with respect to
3 authentication” and tentatively ruled that the letters were inadmissible. Prior to
4 opening argument, the district court denied Defendant’s motion, concluding that the
5 letters were hearsay not within a recognized exception and lacked authentication.
6 After hearing additional argument from counsel, the district court explained that it was
7 “very concerned about the authenticity of these documents” and found that the letters
8 “lack the indicia of reliability, and that they are less probative than prejudicial.”
9 {6} The jury found Defendant guilty of battery against a household member and not
10 guilty of aggravated battery against a household member. The district court sentenced
11 Defendant to 364 days incarceration.
12 DISCUSSION
13 Authentication of Letters
14 {7} In his brief in chief, Defendant contends the district court erred in excluding the
15 letters because they were not offered to prove the truth of the matter asserted–and
16 were thus not hearsay–but were instead offered to impeach Victim’s credibility
17 pursuant to Rule 11-613(B). See State v. Lopez, 2011-NMSC-035, ¶ 15, 150 N.M.
18 179, 258 P.3d 458 (recognizing that “[o]ut-of-court statements are not hearsay . . . if
19 they are offered to impeach a witness on a material matter inconsistent with the
4
1 testimony presented at trial”). Defendant argues that the fact that Victim did not testify
2 at trial is not relevant to the analysis because Rule 11-806 provides, in pertinent part,
3 that “[w]hen a hearsay statement . . . has been admitted in evidence, the declarant’s
4 credibility may be attacked . . . by any evidence that would be admissible for [that
5 purpose] if the declarant had testified as a witness.”
6 {8} In its answer brief, the State contends the district court correctly concluded that
7 the letters were inadmissible pursuant to Rule 11-901(A) because they lacked
8 authentication. The State asserts that “the [district] court always has discretion to
9 conclude that a party’s self-serving ‘authentication’ is inadequate.” In other words,
10 “[t]he sufficiency of authentication is entrusted to the discretion of the [district] judge
11 and depends entirely on particular facts and circumstances.”
12 {9} In his reply brief, Defendant states that, based on his recollection of the record,
13 “the authentication issue was never even considered by the [district] court.”
14 Defendant’s appellate attorney notes that he did not “have the time or ability to
15 retrieve the appellate record again [after reviewing the State’s answer brief and] prior
16 to filing [his] reply brief.”
17 {10} As an initial matter, we note that a reply brief, like a brief in chief, “shall
18 contain . . . citations to authorities, record proper, [and] transcript of proceedings or
19 exhibits relied on.” Rule 12-213(A)(4), (C) NMRA. As our Supreme Court has stated,
5
1 “[W]e are not required to do their research, and . . . will not review issues raised in
2 appellate briefs that are unsupported by cited authority. When a criminal conviction
3 is being challenged, counsel should properly present this court with the issues,
4 arguments, and proper authority.” State v. Clifford, 1994-NMSC-048, ¶ 19, 117 N.M.
5 508, 873 P.2d 254 (citation omitted); see also State v. Barrera, 2001-NMSC-014, ¶
6 33, 130 N.M. 227, 22 P.3d 1177 (same).
7 {11} We have carefully reviewed the trial transcript and conclude that, contrary to
8 Defendant’s statement in his reply brief, the district court did consider the issue of
9 authentication. While neither the parties nor the district court referenced Rule 11-901
10 explicitly, the district court clearly relied on lack of authentication as a basis for its
11 decision. The district court concluded the letters were inadmissible because: (1) they
12 were hearsay not within a recognized exception; (2) they lacked authentication; and
13 (3) they were less probative than prejudicial. With respect to authentication, the
14 district court initially stated that “we don’t even know that [the letters] can be
15 authenticated or any foundation laid.” After defense counsel offered to authenticate
16 the letters through Defendant’s testimony, the district court “agree[d] with the State”
17 about “the difficulties that are being raised with respect to authentication[.]” The
18 district court later stated that it was “very concerned about the authenticity of these
19 documents.” Because the district court concluded that the letters were inadmissible in
6
1 part because they lacked authentication, we consider the State’s argument on appeal,
2 and find it to be dispositive.
3 {12} We review the district court’s decision excluding the letters, like all evidentiary
4 decisions, for an abuse of discretion. See State v. Campbell, 2007-NMCA-051, ¶ 9,
5 141 N.M. 543, 157 P.3d 722 (“Rulings admitting or excluding evidence are generally
6 reviewed for an abuse of discretion.”); see also State ex rel. State Highway Dep’t v.
7 Kistler-Collister Co., 1975-NMSC-039, ¶ 16, 88 N.M. 221, 539 P.2d 611 (“[T]he
8 sufficiency of the foundation or authenticating evidence is a matter largely within the
9 discretion of the [district] court[.]”). “We would find an abuse of discretion when the
10 [district] judge’s action was obviously erroneous, arbitrary[,] and unwarranted. Abuse
11 of discretion has also been defined as being clearly against the logic and effect of the
12 facts and circumstances before the court.” Campbell, 2007-NMCA-051, ¶ 9 (internal
13 quotation marks and citation omitted).
14 {13} While the district court could, perhaps, have resolved this issue differently, we
15 perceive no abuse of discretion in its ruling. Prior to the 2012 amendment, Rule 11-
16 901(A) (2011) stated, “The requirement of authentication or identification as a
17 condition precedent to admissibility is satisfied by evidence sufficient to support a
18 finding that the matter in question is what its proponent claims.”2 Subsection (B) of
2
16 Rule 11-901(A) was amended in 2012 to state: “To satisfy the requirement
17 of authenticating or identifying an item of evidence, the proponent must produce
7
1 Rule 11-901 provides various methods by which a proffered item of evidence can be
2 authenticated or identified. A handwritten document may be authenticated, for
3 example, by “[c]omparison by the trier of fact or by expert witnesses with specimens
4 which have been authenticated.” Rule 11-901(B)(3) (2011).
5 {14} Defendant contends the district court erred as a matter of law in rejecting his
6 proffer that he himself could identify the handwriting based on his familiarity with
7 Victim’s handwriting. Rule 11-901(B)(2) (2011) does provide that a handwritten
8 document may be authenticated by “[n]onexpert opinion as to the genuineness of
9 handwriting, based upon familiarity not acquired for purposes of the litigation.” While
10 the district court could, arguably, have allowed Defendant to authenticate the letters,
11 we are aware of no authority requiring it to do so. We read Rule 11-901(A) (2011) as
12 giving the district court the responsibility of determining the threshold question of
13 whether “the matter in question is what its proponent claims.” The record reflects that
14 the district court was not satisfied that the proffered letters were what Defendant
15 claimed–that is, letters written by Victim recanting the story she told to the 911
16 operator.
18 evidence sufficient to support a finding that the item is what the proponent claims it
19 is.” The Committee Commentary states that the rule was amended to be consistent
20 with the restyling of the Federal Rules of Evidence, and the change was intended to
21 be stylistic only.
8
1 {15} Defendant claims he “was not given the opportunity to seek another person to
2 authenticate the letters because the [district] court essentially dismissed them as not
3 being authentic . . . based upon an erroneous hearsay analysis.” Defendant fails to
4 recognize that, as the proponent of the letters, he had the burden of establishing
5 authentication. Defendant chose to raise the issue on the morning of trial and, despite
6 the district court’s obvious and repeated concerns about authentication, never offered
7 anything other than Defendant’s testimony to authenticate the letters. Defendant did
8 not, for example, offer to submit a specimen of Victim’s handwriting for purposes of
9 comparison by the jury; nor did Defendant offer any expert testimony.
10 {16} On the facts and circumstances presented, we cannot characterize the district
11 court’s ruling as clearly untenable or not justified by reason. See State v. Apodaca,
12 1994-NMSC-121, ¶ 23, 118 N.M. 762, 887 P.2d 756 (“We cannot say the [district]
13 court abused its discretion by its [evidentiary] ruling unless we can characterize it as
14 clearly untenable or not justified by reason.” (internal quotation marks and citation
15 omitted)). The letters were not notarized or submitted with an affidavit; in addition,
16 they were undated, unpaginated, and contained crossed out words. The context of the
17 letters also supports the district court’s decision. The letters contained detailed
18 information about the reporting of Defendant’s alleged crimes, information that was
19 presumably known to only a few people, including Defendant, Victim, and members
9
1 of law enforcement. If these letters were a forgery, they were most likely forged by
2 Defendant, as he had the most to gain from Victim’s supposed recanting of her story.
3 {17} As we have recognized in a similar context, the district court is in the best
4 position to determine whether proffered evidence meets the requisite evidentiary
5 standard. Cf. State v. Ramirez, 1976-NMCA-101, ¶ 40, 89 N.M. 635, 556 P.2d 43
6 (“The [district] court is still the best judge whether evidence tendered as a public
7 record or compiled in regular course meets the standard of trustworthiness and
8 reliability which will entitle the record to stand as evidence of issuable facts.”),
9 holding limited on other grounds as stated in Sells v. State, 1982-NMSC-125, ¶ 9, 98
10 N.M. 786, 653 P.2d 162. We believe the district court’s explanation of its reasons for
11 excluding the letters “show[s] that it exercised its discretion and reached a result a
12 judge reasonably might reach on the arguments and evidence. That is all we require
13 to sustain a discretionary determination.” State v. Johnson, 1997-NMSC-036, ¶ 40,
14 123 N.M. 640, 944 P.2d 869. We thus conclude that the district court did not abuse
15 its discretion in excluding the letters for lack of authentication. Because we conclude
16 that the district court did not err, we do not consider whether any error in excluding
17 the letters would have been harmless.
18 Ineffective Assistance of Counsel, Violation of Sixth Amendment
10
1 {18} Defendant also asks us to consider, as an alternative, whether defense counsel
2 was ineffective for failing to raise a Sixth Amendment or Confrontation Clause
3 argument when the letters allegedly written by the Victim were excluded. Essentially,
4 he is arguing that the letters should have been admitted because otherwise he has been
5 denied the right to confront the absent witness, Victim. This alternative argument fails.
6 {19} For purposes of his ineffective assistance of counsel claim, Defendant must
7 show that counsel’s performance fell below that of a reasonably competent attorney
8 and that defendant was prejudiced by the deficient performance. State v. Nguyen,
9 2008-NMCA-073, ¶ 28, 144 N.M. 197, 185 P.3d 368. The burden of proof is on the
10 defendant to prove both prongs. Id. Even if counsel’s performance was somehow
11 deficient, Defendant has failed to show that there was a reasonable probability that the
12 outcome in this case would have been different. Consequently, we conclude that
13 Defendant has not established a prima facie case of ineffective assistance of counsel.
14 See Headly v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d
15 1076 (explaining that the appellate court does not review undeveloped arguments or
16 guess at what the arguments might be).
17 CONCLUSION
18 {20} We affirm Defendant’s conviction for battery on a household member.
11
1 {21} IT IS SO ORDERED.
2 _________________________
3 M. MONICA ZAMORA, Judge
4 _______________________
5 CYNTHIA A. FRY, Judge
6 _______________________
7 LINDA M. VANZI, Judge
12