IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: 2009-NMSC-001
Filing Date: December 1, 2008
Docket No. 30,210
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JESUS ROBERTO ZAMARRIPA,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Mark A. Macaron, District Judge
Law Offices of Nancy L. Simmons, P.C.
Nancy L. Simmons
Albuquerque, NM
for Appellant
Gary K. King, Attorney General
Max Shepherd, Assistant Attorney General
Santa Fe, NM
for Appellee
OPINION
SERNA, Justice.
{1} This case comes to us on direct appeal from a life sentence pursuant to Rule 12-
102(A)(1) NMRA. A jury convicted Jesus Zamarripa (Defendant) of first degree murder
(depraved mind), contrary to NMSA 1978, Section 30-2-1(A)(3) (1994); shooting at or from
a motor vehicle resulting in great bodily harm, contrary to NMSA 1978, Section 30-3-8(B)
(1993); conspiracy to commit shooting at a motor vehicle resulting in great bodily harm,
contrary to NMSA 1978, Sections 30-28-2(A) (1979) and 30-3-8(B); and two counts of
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aggravated assault with a deadly weapon, contrary to NMSA 1978, Sections 30-3-2(A)
(1963) and 31-18-16(A) (1993).1 Although Defendant raises several issues on appeal, we
reach only one: that he was denied the right to confront a critical witness against him at trial.
On this ground, we vacate his convictions and remand for a new trial.
I. BACKGROUND
A. Facts
{2} In the early evening hours of April 15, 2004, a skirmish arose between six men riding
in two separate cars near Central Avenue in Albuquerque. Defendant was riding in a silver
or gold Saturn with Johnny Baca and his son, Ray Baca. Christopher Arena (Victim),
Arellano Navarro, and Anthony Rubio were in a black Explorer. Shots were fired at two
different intersections: 55th and Churchill and Central and Atrisco. Victim was struck in the
head. After the second encounter, the Explorer went to a car wash where it was met by an
ambulance to treat Victim. Defendant and the Bacas were stopped by law enforcement
within minutes; Ray Baca had a gunshot wound to the hand. Victim subsequently died of
his gunshot wound.
{3} The State’s theory of the case was that Defendant and the Bacas had pursued the
Explorer and shot at its occupants because of a gang rivalry. It alleged that, though
Defendant was not a gang-member, the Bacas were members of the Los Padillas gang and
the occupants of the Explorer had ties to the TCK gang. The State presented evidence that
the hat victim had been wearing identified him as a member of TCK.
{4} To support this theory, the State introduced an out-of-court statement by Ray Baca
that he gave to investigators on the night of the shooting. In the statement, Baca said that,
while Defendant was not a gang member, both Baca and Defendant recognized that the
occupants of the Explorer were part of the TCK gang, a gang that they had “had trouble
with.” Baca stated that gang signs were thrown between the two cars and then the Explorer
began shooting at them. He did not admit to shooting at the Explorer; he maintained that the
only shots fired had come from the Explorer. Baca also said that, just prior to the shots
being fired, he saw the occupants of the Explorer hanging out of the windows and yelling,
though he did not see a gun.
{5} The State used Baca’s statement in two ways. First, it used Baca’s recognition that
he did not see the gun allegedly wielded by the occupants of the Explorer to argue that they
did not have a gun and that Defendant was not acting in self-defense, as he claimed. Second,
1
The jury also convicted Defendant of second degree murder, contrary to NMSA
1978, Section 30-2-1(B), but that conviction and sentence merged with the first degree
murder conviction and sentence.
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the State used Baca’s admission that the shooting was gang related to show motive and as
foundation for a gang expert who testified about the rivalry between Los Padillas and TCK
and how the altercation may have escalated.
{6} The defense theory was that Victim’s injury was “friendly fire” inflicted by one of
the other occupants of the Explorer, and that Victim’s car fired upon Defendant’s car first
and that Defendant had only returned fire in self-defense. While neither Defendant nor
Johnny Baca testified, Baca’s statement supports this claim in that he stated that the Explorer
was the first to shoot. Nevertheless, in an apparent attempt to keep the gang evidence away
from the jury, defense counsel opposed the admission of Baca’s statement.
{7} As for the surviving occupants of the Explorer, they denied that there was
“maddogging” (staring), yelling, or gang-sign flashing just prior to the shooting. One of
them denied that the shooting was gang-related. They both denied ever firing a gun at the
Saturn or having one in their possession.
{8} Although there was evidence that at least two guns were fired—casings from two
separate guns were found at the intersections where shots were fired [], there was a bullet
hole in the Saturn, and witnesses reported that the cars were shooting at each other—only
one gun was recovered by the police, and it was found in Defendant’s car. Police did not
find a gun in the Explorer. It is unclear whether investigators searched for a gun along the
path that the Explorer traveled before making contact with the police.
B. Proceedings Below
{9} At Defendant’s trial, Baca, who was awaiting the outcome of his own appeal for the
incident, invoked his Fifth Amendment privilege against self-incrimination to avoid
testifying. See U.S. Const. amend. V (“No person . . . shall be compelled in any criminal
case to be a witness against himself.”). The State moved for an order to compel Baca’s
testimony based on his statement and grant him use immunity. See Rule 5-116 NMRA
(giving district courts the authority to compel witnesses to testify and immunize them from
further prosecution). The use immunity was intended to protect Baca from use of his
compelled testimony in any future proceeding against him, see Rule 11-412 NMRA
(precluding the use of evidence obtained under an immunity order), and was offered by the
State in an apparent attempt to avoid defeating his confrontation rights under Crawford v.
Washington, 541 U.S. 36 (2004). However, the scope of the immunity only covered Baca’s
verification of the accuracy of the transcript of his statement; he was not immune from future
prosecution based on his answers to substantive questioning on the events described in the
statement.
{10} Defense counsel argued numerous times that admitting the transcript of the Baca
statement while he had no opportunity to cross-examine Baca would circumscribe
Defendant’s rights under Crawford. However, over Defendant’s objection, the court granted
the State leave to give limited use immunity to Baca so that it could compel him to take the
stand and verify that the transcript of his statement accurately reflected what he had told the
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investigator the night of the shooting.
{11} At this point in the trial, there was a lengthy colloquy between the prosecutor,
defense counsel, Baca’s attorney, and the court about how to proceed with Baca’s statement
while remaining cautious about Baca’s Fifth Amendment privilege, the Crawford issue, and
the potential prejudice to Defendant if Baca invoked the privilege on the stand. During the
exchange, Baca’s attorney tried to clarify the scope of the use immunity. The State proposed
several options for the form that its questions to Baca could take so as to avoid inadvertently
coaxing him beyond the immunity granted. Baca’s attorney expressed concern about the
nature of the questioning; specifically, he thought that the State’s proposed questions went
to the substance of Baca’s statement while the order granting use immunity only covered
questions about the statement itself.
{12} The court asked whether defense counsel had any input; defense counsel asked
whether the written transcript of Baca’s statement would be going to the jury. When asked
by the court whether he wanted the written transcript to go to the jury, defense counsel
answered, “I think I do want it. If we are going to get into it, I think the whole thing has to
go in . . . . We wouldn’t have to walk [Baca] through ‘Did you say this, did you say that.’”
Defense counsel said that Baca’s concerns would be addressed by putting the written
statement itself in “so then we are not going through [the] wording of questions.” He
continued that “it may . . . be less prejudicial considering the rulings made, to the defense.”
{13} The court suggested that both sides stipulate to the statement in an effort to “avoid
the risks of expanding the field and questions about what’s protected and what’s not.” The
State said that it would stipulate to the statement but then asked whether Defendant, by
stipulating to the statement, was waiving his right to cross-examine Baca. Defense counsel
replied: “I am not waiving Crawford . . . . I haven’t waived Crawford and I don’t intend to
. . . .”
{14} The court then responded to defense counsel:
I recognize you made arguments on the record regarding Crawford, I am not
asking you to waive what you have argued, but the fact is that at this point,
if the statement goes in, you would be foregoing any further questions
regarding that now. Is that—would that work for you?
Defense counsel asked, “Is the Court saying the only way the statement can go in in a written
form is if I forego any further cross-examination?” The court replied, “No . . . I didn’t say
that. I am wondering if that might be a substitute for having Mr. Baca basically sit on the
stand and affirm the statement and sit on the stand and answer to you that he is going to
assert the fifth.”
{15} Defense counsel then suggested that Baca could affirm the validity of the transcript
and then assert his Fifth Amendment privilege to any other questions. He added that “I don’t
see where . . . that itself is error or following that manner of proceeding at this point is not
going to cause any error.” The prosecutor stated that without Defendant waiving Crawford,
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they could not merely stipulate to the statement. The court agreed. The prosecutor
continued that she could have Baca testify to the statement and then let Defendant cross-
examine him, and Baca would still be able to assert the privilege if defense counsel got
outside of the original testimony.
{16} Defense counsel then interjected with:
Is what the Court—maybe I missed the Court’s—wants me to consider at this
point waiving cross-examination at this point so the statement comes in, in
lieu of verifying the statement and then possible cross-examination? The
Court is saying by waiving any cross-examination at this point in the
proceedings we could put the statement in and both sides would waive cross?
When the court answered in the affirmative, defense counsel replied that he would be willing
to do that. However, when asked if it was willing, the State responded that it would like to
stipulate to the statement and still put Baca on the stand to verify the transcript.
{17} Baca’s attorney again expressed concern that the State would ask Baca questions
about the substance of the statement. The State assured Baca’s attorney and the court that
it would only ask about what Baca had told the investigator: “the question . . . would be, ‘Is
that what you told [the] [d]etective?’ . . . I am not asking, ‘Is that what happened?’ But I am
asking, ‘Is this a fair representation of what you told her that night?’”
{18} After ensuring that Baca’s attorney and the State were in agreement as to the form
of the State’s questions to Baca, the court asked defense counsel, “[i]s that going to work for
you?” Defense counsel responded “in light of where we are in the legal rulings, that is
adequate. That’s a fair way to address it.” The court then told defense counsel that it needed
to offer him the opportunity to cross for the record. Defense counsel said that he might ask
Baca a question about his hand injury. The court asked Baca’s attorney if there was a
problem with Defendant asking about the hand injury. Baca’s attorney responded no, but
he would be concerned about too many more questions cumulatively implicating Baca’s
privilege against self-incrimination. The court said that it “need[ed] a commitment” in order
to reach an agreement. It asked defense counsel: “[d]o you agree that would satisfy your
need to cross?” Defense counsel answered that it would. The court stated again that it
wanted to be sure for the record that defense counsel was comfortable asking only one
question of Baca and that he agreed to waive further cross. Defense counsel said that he
was, at that point. He then stated that the defense opposition to the order compelling
testimony and granting use immunity was not noted on the order, but that he signed it “as
to form.”
{19} The State then put Baca on the stand to verify the accuracy of the transcript. The
prosecutor asked him whether he had had a chance to review the transcript and whether it
“accurately reflect[ed]” and was “a fair representation” of what he remembered telling the
investigator. Baca answered affirmatively. As stipulated, Baca’s statement was admitted
5
to evidence. Defense counsel did not conduct any cross-examination of Baca.
{20} The jury returned a verdict against Defendant on six of eight charges and he was
sentenced to life plus two years imprisonment.
II. DISCUSSION
{21} Defendant claims that Baca’s statement was admitted in violation of the
Confrontation Clause of the Sixth Amendment to the U.S. Constitution as interpreted by
Crawford. See U.S. Const. amend. VI; Crawford, 541 U.S. at 53-54. He argues that
admission of Baca’s statement when Defendant did not have the opportunity to cross-
examine Baca on its contents defeated his constitutional right to confront the witness against
him. See Crawford, 541 U.S. at 53-54. We agree.
{22} We review admission of statements alleged to be in violation of Crawford de novo.
State v. Dedman, 2004-NMSC-037, ¶ 23, 136 N.M. 561, 102 P.3d 628. Defendant did not
argue that the New Mexico Confrontation Clause, N.M. Const. art. II, sec. 14, afforded more
rights than the United States Confrontation Clause, U.S. Const. amend. VI, so we address
only the federal Constitutional provision. See State v. Gomez, 1997-NMSC-006, ¶¶ 22-23,
122 N.M. 777, 932 P.2d 1.
A. Defendant’s Constitutional Right to Cross-Examine the Witness Against Him
Was Violated
{23} “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him . . . .” U.S. Const. amend. VI. Out-of-court testimonial
statements are barred under the Confrontation Clause, unless the witness is unavailable and
the defendant had a prior opportunity to cross-examine the witness, regardless of whether
such statements are deemed reliable by the court. Crawford, 541 U.S. at 68; State v.
Johnson, 2004-NMSC-029, ¶ 7, 136 N.M. 348, 98 P.3d 998. Specifically, “an accomplice’s
testimonial statement [is] inadmissible under the Confrontation Clause unless the accomplice
[is] unavailable and the defendant had a prior opportunity to cross-examine the accomplice
concerning the statement.” State v. Henderson, 2006-NMCA-059, ¶ 15, 139 N.M. 595, 136
P.3d 1005 (internal quotation marks and citation omitted).
{24} The nature and circumstances of Baca’s statement reveal that its admission was a
paradigmatic Crawford violation. First, the statement falls under the purview of Crawford
because it was testimonial. “Statements taken by police officers in the course of
interrogations are . . . testimonial under even a narrow standard.” Crawford, 541 U.S. at 52;
State v. Romero, 2006-NMCA-045, ¶¶ 49-50, 52, 139 N.M. 386, 133 P.3d 842. Statements
are testimonial when there is no ongoing emergency and the “primary purpose of the
interrogation is to establish or prove past events potentially relevant to later criminal
prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006).
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{25} Here, Baca gave his statement in response to formal police interrogation. He had
been mirandized. He was at a police station answering the questions of an investigator and
his statement was tape recorded. See Romero, 2006-NMCA-045, ¶ 52 (holding that a
statement made at a police station in response to police questioning that was tape recorded
bore the indicia of formal police interrogation and was thus testimonial). Further, Baca
made the statement at a time when the urgency of the shooting had ceased and the efforts of
the police had shifted from ensuring safety in an ongoing emergency to “establish[ing] or
prov[ing] past events potentially relevant to later criminal prosecution.” See Davis, 547 U.S.
at 822. For these reasons, Baca’s statement was testimonial and thus within the scope of
Crawford.
{26} Having determined that the statement was testimonial, the propriety of its admission
depends upon whether the two Crawford requirements were met. First, Baca must have been
unavailable to testify to the contents of the statement at the time of Defendant’s trial, and
second, Defendant must have had a prior opportunity to cross-examine Baca on the contents
of the statement.
{27} “‘Unavailability as a witness’ includes situations in which the declarant . . . is
exempted by ruling of the court on the ground of privilege from testifying concerning the
subject matter of the declarant’s statement . . . .” Rule 11-804(A)-(A)(1) NMRA;
McGuinness v. State, 92 N.M. 441, 444, 589 P.2d 1032, 1035 (1979). Baca invoked his Fifth
Amendment privilege against self-incrimination and was therefore unavailable to be cross-
examined. Thus, the “unavailability” requirement of Crawford is met. We turn to the next
requirement.
{28} It is undisputed that Defendant had no opportunity to cross-examine Baca on the
contents of the statement prior to Defendant’s trial. However, the State claims that
Defendant had an opportunity to cross-examine Baca during Defendant’s trial. This
argument is belied by the facts as they are presented in the record. As discussed above, Baca
invoked his Fifth Amendment privilege to avoid testifying at Defendant’s trial; his attorney
plainly stated that he was invoking his Fifth Amendment privilege and was “not willing to
testify” on at least two occasions. The State stipulated that Baca had invoked his Fifth
Amendment privilege.
{29} If the State means to argue that Defendant had an opportunity to cross-examine Baca
by virtue of the use immunity, that claim is similarly without merit. The order granting use
immunity stated that the immunity extended only to Baca’s testimony “regarding the
statement he made to [the police].” In attempting to clarify the nature of the immunity
granted, Baca’s attorney illuminated the situation thus:
If the question is, ‘Is that what happened,’ do we still have immunity from
that? . . . Because to me that’s not asking him about the statement he made
to [the police]. It’s asking him about the events . . . and as I read the
proposed form of Order, we are talking only about immunity with regard to
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evidence he made, the testimony he may give, with regard to the statement
he made to [the police].
The prosecutor confirmed the impression of Baca’s attorney regarding the restricted nature
of the immunity: “[t]he question . . . would be, ‘Is that what you told [the police] what
happened on that night?’ . . . I am not asking, ‘Is that what happened?’ But I am asking, ‘Is
this a fair representation of what you told her that night?’”
{30} Defense counsel contested the limited scope of the use immunity and its effect on his
client’s Crawford rights:
[w]e reiterate our arguments . . . made prior to the trial beginning regarding
the Crawford problems. We still feel there’s some restriction if the testimony
is permitted without the opportunity to fully cross-examine him. We realize
the State is attempting to obviate that by seeking the motion . . . [b]ut we do
not concur in the motion. We still want to be able to fully cross-examine the
gentlemen if he testifies at all . . . we are in opposition because we feel it’s
too restrictive in cross-examination.”
If Baca was available to be questioned on the substance of the statement or the events
described therein, surely the State would have asked more of him than whether the transcript
“accurately reflect[ed]” and was a “fair representation” of what he told the police on that
evening. When Baca was on the stand, he was compelled there for the narrow purpose of
verifying the accuracy of the transcript of his statement, not for answering any substantive
questions on the statement itself or the events described therein.
{31} While Defendant may have been able to cross-examine Baca regarding the accuracy
of the transcript of his statement, that limited questioning does not satisfy the demands of
the Confrontation Clause. We have held on numerous occasions that, when confronted with
an accomplice’s statement, a defendant’s rights to confront are only satisfied where he or she
is allowed the opportunity to cross-examine the accomplice on the statement. See, e.g., State
v. Forbes, 2005-NMSC-027, ¶ 3, 138 N.M. 264, 119 P.3d 144 (holding that an accomplice’s
statement was inadmissible where the defendant “was deprived of the opportunity to cross-
examine [the accomplice] to challenge the reliability of his statement”); State v. Alvarez-
Lopez, 2004-NMSC-030, ¶ 24, 136 N.M. 309, 98 P.3d 699 (holding that, where the
defendant had no opportunity to cross-examine the accomplice on the accomplice’s
testimonial statements, admission of the statements violated the Sixth Amendment);
Johnson, 2004-NMSC-029, ¶ 6 (holding that an accomplice’s statement was inadmissible
where the defendant did not “at any time have an opportunity to cross-examine [the
accomplice] on his statement”); Henderson, 2006-NMCA-059, ¶ 16 (holding that a “prior
opportunity to cross-examine the statement” was a prerequisite to the testimonial statement’s
subsequent admission at trial); State v. Duarte, 2004-NMCA-117, ¶ 10, 136 N.M. 404, 98
P.3d 1054 (holding that an accomplice’s testimonial statement was inadmissible “unless the
accomplice was unavailable and the defendant had a prior opportunity to cross-examine the
8
accomplice concerning the statement”).
{32} Admission of Baca’s testimonial statement when Defendant did not have a prior
opportunity to cross-examine him on its substance violated Defendant’s right to confront.
Baca’s statement was admitted without regard to that “central concern of the Confrontation
Clause[:] . . . to ensure the reliability of the evidence against a criminal defendant by
subjecting it to rigorous testing in the context of an adversary proceeding before the trier of
fact.” Lilly v. Virginia, 527 U.S. 116, 123-24 (1999) (internal quotation marks and citation
omitted).
B. Defendant Preserved His Crawford Argument
{33} Having determined that Defendant’s rights under the Sixth Amendment were violated
by admission of Baca’s statement, we turn to the question of whether he preserved the issue
for appellate review. Even constitutional rights may be lost if not preserved below. See
State v. Silva, 2008-NMSC-051, ¶ 15, 144 N.M. 815, 192 P.3d 1192 (“[T]he loss of the
fundamental right to cross-examine is not necessarily fundamental error.”). “To preserve
a question for review it must appear that a ruling or decision by the district court was fairly
invoked . . . .” Rule 12-216(A) NMRA. A party must assert its objection and the basis
thereof with “sufficient specificity to alert the mind of the trial court to the claimed error.”
Silva, 2008-NMSC-051, ¶ 9 (internal quotation marks and citation omitted).
{34} Defendant fairly invoked a ruling by the trial court with his numerous objections to
the admission of Baca’s statement without an opportunity for Defendant to cross-examine
Baca on its contents. For example, defense counsel stated just before trial: “Mr. Baca . . .
is not testifying . . . . If Mr. Baca is uncross-examinable . . . I think that’s a violation . . . .
[W]e are left with a situation where it’s a violation of Crawford and a violation, I believe,
of the proper cross-examination.”
{35} When, at trial, Baca invoked his Fifth Amendment privilege, defense counsel
repeated his arguments. He stated: “the Crawford problem that we have . . . we are unable
to cross-examine [Baca]” and “[w]e reiterate our arguments . . . made prior to the trial
beginning regarding the Crawford problems. We still feel there’s some restriction if the
testimony is permitted without the opportunity to fully cross-examine him.” Defendant
objected with “sufficient specificity to alert the mind of the trial court” to the Crawford
problem. See Silva, 2008-NMSC-051, ¶ 9 (internal quotation marks and citation omitted).
{36} We note that, although the dissent does not directly contest our conclusion that
Defendant preserved Crawford, it seems troubled by defense counsel’s incorporation during
trial of arguments made pretrial and reference to the court’s previous ruling in making the
Crawford argument. Dissenting Opinion, ¶¶ 70, 71, 74, 76. The lack of clarity was owing
to the fact that the Crawford issue was initially due to the State’s intended introduction of
Baca’s statement when Baca was going to invoke the Fifth and then persisted when the
9
State’s granted immunity was too narrow in scope to allow Baca to testify substantively.
Nevertheless, we conclude that the Defendant sufficiently alerted the mind of the trial court
to the error and that the issue was properly preserved.
C. Defendant Did Not Waive His Right to Cross-Examine Baca
{37} Next, the State argues—and the dissent concurs—that Defendant waived his right to
cross-examine Baca. In support of this argument, the State points to the fact that defense
counsel agreed that both sides would stipulate to admission of Baca’s statement and then
waive cross-examination. The dissent adds that Baca’s statement was not admitted “in lieu
of live testimony except at Defendant’s prompting.” Dissenting Opinion, ¶ 67. The State
also contends that defense counsel waived the objection by not asking any questions of Baca
when it actually came time to cross-examine him. Both the State and the dissent posit that
Defendant waived his Crawford objection for tactical reasons, because Baca’s statement
corroborated Defendant’s claim that the occupants of the Explorer fired first and that he was
acting in self-defense. We will address each argument in turn.
{38} Waiver is the “intentional relinquishment or abandonment of a known right or
privilege.” State v. Padilla, 2002-NMSC-016, ¶ 18, 132 N.M. 247, 46 P.3d 1247 (internal
quotation marks and citation omitted). A waiver must be knowing and voluntary. Id. There
is a presumption against the waiver of constitutional rights. Brookhart v. Janis, 384 U.S. 1,
4 (1966).
{39} As an initial matter, the dissent contends that the “State intended to introduce the
statement’s substance through directly questioning Baca, without restricting Defendant from
cross-examining him about the statement.” Dissenting Opinion, ¶ 68. We respectfully
submit that our colleague misapprehends the nature of the order to compel and grant use
immunity. The motion was drafted to extend only to statements verifying the transcript. The
restrictions placed on Defendant inhered in the terms of that motion, which excluded any
substantive questioning on the statement.
{40} Next, the State and the dissent make what initially appears to be a strong argument
that, by stipulating to admission of Baca’s statement and stating that he would waive cross-
examination of Baca, defense counsel waived his Crawford objection. However, study of
the transcript reveals that this occurred only after the court had granted the State’s motion
for limited use immunity and thereby rejected Defendant’s Crawford argument. From the
time the limited use immunity was conferred, Defendant was not in a position to waive his
right to full cross-examination under Crawford because full cross-examination was no longer
available to him, per the scope of the immunity granted.
{41} The possibility of stipulation to Baca’s statement arose as a way to end the prolonged
debate on the form the State’s questions would take to elicit the information the State desired
from Baca without inadvertently having him incriminate himself. The court suggested that
both sides might stipulate to the transcript to “avoid the risks of expanding the field and
10
questions about what’s protected and what’s not.”
{42} The State said that it would stipulate to the statement but then asked whether
Defendant, by stipulating to the statement, was waiving his right to cross-examine Baca.
Critically, defense counsel replied:
I am not waiving Crawford. I think the questions I asked are going to be
answered with the Fifth Amendment. That was made prior to the Court’s
ruling. The Court considered [Crawford] and made its decision, and counsel
and the client respect that decision, but I think I haven’t waived Crawford
and I don’t intend to, but I think within this purview, . . . . If [Baca] takes the
fifth amendment, I am stuck with that. That doesn’t waive Crawford . . . . the
Crawford argument has been considered and rejected as far as applicable to
whether [Baca] can testify summarily in the Court’s ruling . . . . I would be
willing to stipulate without waiving Crawford. I am saying at this point my
Crawford argument was much stronger, was asserted prior to the Court’s
ruling. At this point it really doesn’t make much difference. The Court has
said this statement is coming in, so I am saying if it’s coming in, put it [sic]
in the statement. I know I’m not going to get anything more out of [Baca]
because that’s the terms that inure . . . in the order. The terms are the
statement comes in, [Baca] doesn’t have to testify, can still assert his fifth .
. . . The Court rejected [the Crawford argument] and we will proceed.
The court then responded to defense counsel: “. . . I recognize you made arguments on the
record regarding Crawford, I am not asking you to waive what you have argued, but the fact
is that at this point, if the statement goes in, you would be foregoing any further questions
regarding that now. Is that—would that work for you?” Defense counsel asked, “[i]s the
Court saying the only way the statement can go in in a written form is if I forego any further
cross-examination?” The court replied, “[n]o . . . I didn’t say that.”
{43} However, when defense counsel asked whether the court was asking him to consider
waiving cross-examination “so that the statement comes in, in lieu of verifying the statement
and then possible cross-examination,” the court answered in the affirmative. Defense
counsel agreed to this procedure. The State then said that it would stipulate to the statement
but still wanted to put Baca on the stand to verify the transcript. After a final clarification
between Baca’s attorney and the prosecutor on the form that the State’s questions to Baca
would take, the court asked defense counsel, “[i]s that going to work for you?” Defense
counsel again responded “in light of where we are in the legal rulings, that is adequate.
That’s a fair way to address it.”
{44} In response to the dissent’s conclusion that Defendant waived his right to cross-
examine Baca because “Baca’s statement was not admitted in lieu of live testimony except
at Defendant’s prompting,” Dissenting Opinion, ¶ 67, we respectfully submit that our
colleague misconstrues the nature of the live testimony that was available to Defendant after
11
the court granted the State’s motion. Rather than alleviate the Crawford problem, as the
State and the court may have intended, the order to compel Baca’s testimony and immunize
him from prosecution thereon actually perfected the Crawford problem because it ensured
that Baca would testify only to the extent of verifying the accuracy of his statement.
{45} The narrow scope of the immunity granted was problematic in that it did not allow
for substantive questioning or full cross-examination of Baca. Rather, any opportunity that
Defendant may have had to cross-examine Baca was lost per the terms of the order, because
the immunity granted did not extend as far as would have allowed Baca to be fully cross-
examined on his statement. Thus, from the time the very limited immunity was conferred,
full cross-examination of Baca—such that would have satisfied Crawford—was not on the
table. Any subsequent negotiation or acquiescence on the part of defense counsel can only
be understood in terms of what was still available to him after the immunity was granted; per
the terms of the order, this was cross-examination only on the accuracy of the transcript of
Baca’s statement, not on its substance.
{46} The little that was at stake for Defendant during the back-and-forth about how to
proceed with Baca’s statement after the order was granted is evident from the court’s
statement to defense counsel that foregoing cross-examination “might be a substitute for
having Mr. Baca basically sit on the stand and affirm the statement and sit on the stand and
answer to you that he is going to assert the Fifth.” If Defendant can be said to have waived
anything in negotiating with the State, he may have waived the limited cross-examination
still permitted to him after the order was granted, specifically cross-examination limited to
the accuracy of the transcript. The constitutional error was made at the point that the State’s
motion was granted: any subsequent negotiation with respect to cross-examination of Baca
on his verification of the statement did not waive the objection to the underlying,
fundamental limitation on Defendant’s rights to fully cross-examine Baca on the substance
of the statement.
{47} Although defense counsel participated in the discussion about how best to handle
Baca’s statement and, in so doing, stipulated to admission of the statement and said that he
waived cross-examination, his Crawford argument had been made and rejected by that point.
Participating in the discussion “in light of the rulings made” did not constitute a “knowing
and voluntary” waiver of the prior Crawford objection. See Padilla, 2002-NMSC-016, ¶ 18.
We particularly decline to imply a waiver in light of defense counsel’s clear statement: “I
am not waiving Crawford . . . and I don’t intend to.”
{48} The State next contends that defense counsel waived his objection to the Crawford
issue by failing to ask any questions of Baca after the State had put him on the stand to verify
the transcript of his statement. We emphasize that, as discussed above, Baca was only on
the stand for the limited purpose of verifying the accuracy of the transcript of his statement
and was not available to answer substantive questions. All parties and the court were aware
that outside the bounds of the immunity order, Baca had invoked the Fifth Amendment.
Requiring defense counsel to attempt to question Baca on the substance of his statement to
12
avoid waiving his Crawford objection would have resulted in Baca invoking the Fifth
Amendment on the stand. However, to avoid prejudice, claims of privilege are to be invoked
outside the presence of the jury. Rule 11-513(B) NMRA. Requiring defense counsel to
attempt to cross-examine Baca when he was aware that Baca had invoked the Fifth
Amendment would have been improper; Defendant did not waive Crawford by declining to
do so.
{49} Finally, the State and the dissent maintain that Defendant waived his right to cross-
examine Baca and actually acquiesced in admission of the statement for strategic reasons,
as demonstrated by his subsequent reliance on Baca’s statement. While we agree that
admission of the statement may have been beneficial to Defendant because of Baca’s claim
that the occupants of the Explorer were the only ones to fire a gun, we remain unpersuaded
that the possible benefit to Defendant betrays a tactical or strategic plan on the part of
defense counsel to “have it both ways,” specifically to object to the statement to preserve an
appellate claim and yet to acquiesce in its admission to buttress his client’s defense in front
of the jury. On the whole, defense counsel fought admission of Baca’s statement because
it provided strong evidence of a possible motive and was foundational evidence for the State
to introduce a gang expert who testified to extensive detail on gangs and gang rivalries and
may have diminished Defendant in the eyes of the jury. Defendant’s subsequent reliance on
the statement was not a waiver or evidence of a strategic plan to have it both ways, but was
an attempt to mitigate the adverse ruling by arguing the evidence in his client’s favor.
{50} Defense counsel’s reliance on Baca’s statement after his Crawford objections had
been made and rejected did not constitute a waiver. An objection is not waived where, after
it is overruled, the objecting party agrees to the introduction of statements similarly
objectionable and relies on them to make its case. Sayner v. Sholer, 77 N.M. 579, 581, 425
P.2d 743, 744 (1967) (“The court having already overruled the proper objection . . . , counsel
was placed in the rather unenviable position of having to make the best of a bad situation.
This was not a waiver.” (internal quotation marks and citation omitted)); accord Romero,
2006-NMCA-045, ¶ 16 (holding that, where “improper evidence is admitted over objection,
resort may be had to like evidence without waiving the original error.” (internal quotation
marks and citation omitted)); 1 John W. Strong, McCormick on Evidence § 55, at 246-47
(5th ed. 1999) (same). Arguing evidence admitted over an attorney’s objection in the
client’s favor is consonant with an attorney’s professional responsibility to zealously
advocate for the client and the attorney’s duty to act diligently under Rule 16-103 NMRA.
There is no waiver where a defense attorney, his or her original objection rejected by the
court, determines to “make the best of a bad situation” and argues the improperly admitted
evidence in the client’s favor. See Sayner, 77 N.M. at 581, 425 P.2d at 744.
{51} For all the foregoing reasons, we conclude that Defendant did not waive his
Crawford objection.
D. Admission of Baca’s Statement Was Not Harmless Error
13
{52} When a statement is admitted in violation of the Confrontation Clause, we next
inquire into whether the error was harmless. Delaware v. Van Arsdall, 475 U.S. 673, 682
(1986); Johnson, 2004-NMSC-029, ¶ 7. To preclude reversal, the error must be harmless
beyond a reasonable doubt. Johnson, 2004-NMSC-029, ¶ 8. The ultimate inquiry is
“whether there is a reasonable possibility that the evidence complained of might have
contributed to the conviction.” Chapman v. California, 386 U.S. 18, 23 (1967) (internal
quotation marks and citation omitted). We do not “cobble together sufficient evidence” and
proclaim that the jury might have convicted the defendant in the absence of the erroneously
admitted statement, see Johnson, 2004-NMSC-029, ¶ 44, nor do we usurp the role of the jury
and conduct our own inquiry into the defendant’s guilt or innocence. See id. ¶ 43. Rather,
we make “an objective reconstruction of the record of evidence the jury either heard or
should have heard absent the error and a careful examination of the error’s possible impact
on that evidence.” Id. ¶ 10.
{53} In conducting a harmless error analysis in the context of a Crawford violation, we
are guided by the following “Johnson factors:” (1) the importance of the witness’ testimony
in the prosecution’s case; (2) whether the testimony was cumulative; (3) the presence or
absence of evidence corroborating or contradicting the testimony of the witness on material
points; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength
of the prosecution’s case. Id. ¶ 11. “Once the constitutional error has been established, the
burden is on the State to demonstrate the error is harmless beyond a reasonable doubt.” Id.
¶ 9.
{54} All of Defendant’s convictions arose from his alleged shooting at the Explorer and
all of them required the jury to discredit his claim of self-defense. Thus, while there are
some cases where an error may not be harmless with respect to one conviction and harmless
with respect to another conviction, id. ¶ 31, we are presented with a case where Defendant’s
convictions will either all stand together or all fall together. This will depend on whether
there was a “reasonable possibility” that Baca’s statement might have contributed to the
jury’s conclusion that Defendant had not acted in self-defense. See Chapman, 386 U.S. at
23.
{55} The first Johnson factor requires us to examine the importance of Baca’s statement
to the State’s case. We begin by noting that the State mentioned Baca’s statement eight
times in its closing argument. The State argued that Baca’s statement proved that Defendant
had not acted in self-defense and was in fact the first shooter. In making this point, the State
recounted to the jury that Baca saw the occupants of the Explorer hanging out of the car, did
not see any weapons, and then heard shooting. The State claimed that this proved that the
shots that Baca heard came not from the occupants of the Explorer, whom Baca did not see
wielding a gun, but from Defendant.
{56} The State also relied on Baca’s statement that he and Defendant recognized the
occupants of the Explorer as members of TCK, a gang whom they had had trouble with, and
that there was yelling and flashing of gang signs before the shooting broke out. The State
14
represented multiple times to the jury that this tended to show Defendant’s intent to confront
the occupants of the Explorer and that he was not merely protecting himself when he shot
at them.
{57} While we acknowledge that Baca’s statement also supported Defendant’s claim that
the occupants of the Explorer were the first to fire, and that the portion of Baca’s statement
relied upon by the State does not seem to be particularly strong proof that Defendant was the
initial shooter, we do not weigh evidence. What is paramount in the Johnson analysis is the
State’s heavy emphasis on Baca’s statement and its continuous representations to the jury
that the statement disproved Defendant’s claim of self-defense. See State v. Torres, 1999-
NMSC-010, ¶ 53, 127 N.M. 20, 976 P.2d 20 (holding that the State’s emphasis on
improperly admitted evidence demonstrated a reasonable possibility of it contributing to the
conviction). Because of the State’s heavy reliance on Baca’s statement, the first Johnson
factor weighs in favor of a “reasonable possibility” that its admission contributed to
Defendant’s conviction. See Chapman, 386 U.S. at 23.
{58} The second Johnson factor is whether the improperly admitted statement was merely
cumulative. In addressing this factor, we treat Baca’s statement as containing two strands
of evidence. First, as discussed above, the State used portions of Baca’s statement to argue
that Defendant had not acted in self-defense but was the initial shooter. The State also
utilized the statement for Baca’s admission that the shooting arose because of a gang rivalry.
On neither point was the statement cumulative.
{59} First, although the statement was not the only evidence that Defendant had not acted
in self-defense when he allegedly shot at the Explorer, it was the only evidence of its kind
on this point. Specifically, it was the only evidence originating directly from an occupant
of the Saturn that incriminated Defendant. Given that Baca’s self-inculpating admission
would be much more powerful in the eyes of the jury than what could be perceived as the
self-serving claims by the surviving occupants of the Explorer, Baca’s statement was not
cumulative. Rather, it corroborated and confirmed the victims’ testimony that Defendant
was the initial shooter. See Johnson, 2004-NMSC-029, ¶ 39 (“[C]orroborative evidence
tends to corroborate or to confirm, whereas cumulative evidence merely augments or tends
to establish a point already proved . . . .”).
{60} The State also used Baca’s statement to show that the shooting arose because of a
gang rivalry. The statement was not cumulative on this point, either. Both of the surviving
occupants of the Explorer initially denied the possibility that the shooting was gang-related,
although one of them subsequently admitted at trial that the shooting might have been gang-
related. Thus, there was little direct evidence beyond Baca’s statement that the shooting
arose because of a gang rivalry.
{61} The introduction of the gang element was significant for two reasons. First, it
provided evidence of a motive for the shooting. Second, it created the foundation for the
State to introduce expert evidence on Los Padillas and TCK, the gangs’ particular rivalry,
15
and how the initial encounter may have escalated into a shooting match. We cannot
conclude that introduction of Baca’s statement, with its injection of gangs into the trial, was
“so unimportant and insignificant” that it did not affect the verdict. See Chapman, 386 U.S.
at 22.
{62} As to the third Johnson factor, although Baca’s statement may not have been the only
evidence tending to show that Defendant was the initial aggressor or that gangs were
involved in the shooting, it was the strongest. As discussed above, it was particularly
damaging to Defendant in that it came from his accomplice. Regarding the fourth Johnson
factor, as analyzed in detail above, there was no cross-examination of Baca permitted outside
of his verification of the statement. Cross-examination of other witnesses was unrestricted.
{63} The final Johnson factor requires inquiry into the overall strength of the State’s case
against Defendant. While the prosecution’s case was quite strong that Defendant shot at the
Explorer—there was substantial evidence that occupants of the two cars shot at one
another—it was less strong that he did not act in self-defense because there was no
conclusive evidence showing who fired the first shots. However, our role is not to ask
“whether, in a trial that occurred without the error, a guilty verdict would surely have been
rendered, but whether the guilty verdict actually rendered in this trial was surely
unattributable to the error.” Id. ¶ 9 (internal quotation marks and citation omitted). To this
effect, we decline to “hypothesize a guilty verdict that was never in fact rendered.” See
Johnson, 2004-NMSC-029, ¶ 10 (internal quotation marks and citation omitted). We cannot
conclude that the same verdict would have been returned for Defendant in the absence of
Baca’s statement.
{64} For all the forgoing reasons, Baca’s statement was not “so unimportant and
insignificant” that there was no “reasonable possibility” that it contributed to the verdict
against Defendant. See Chapman, 386 U.S. at 22, 23. The admission of Baca’s statement
was not harmless error.
III. CONCLUSION
{65} Admission of Baca’s statement in the absence of any opportunity for Defendant to
cross-examine Baca on its substance violated Defendant’s Sixth Amendment rights under
Crawford and was not harmless error. Defendant’s convictions are vacated and we remand
for a new trial consistent with this Opinion.
{66} IT IS SO ORDERED.
PATRICIO M. SERNA, Justice
WE CONCUR:
16
RICHARD C. BOSSON, Justice
CHARLES W. DANIELS, Justice
CHÁVEZ, Chief Justice (dissenting).
{67} Defendant knowingly and voluntarily waived his right to cross-examine witness
Ray Baca (Baca). Baca’s statement was not admitted in lieu of live testimony except at
Defendant’s prompting, and as such, I respectfully dissent.
{68} The State produced Baca to testify with the benefit of use immunity. The
parameters of the use immunity were defined by the contents of a statement given by
Baca to an investigating officer on the night of the shooting in question. The State
intended to introduce the statement’s substance through directly questioning Baca,
without restricting Defendant from cross-examining him about the statement. Instead of
exercising the right to cross-examine Baca concerning the statement, Defendant’s
attorney announced his preference for the entire transcript of the statement to go to the
jury. Obviously, this strategic decision was prompted by the exculpatory evidence in the
statement. As such, I agree with the State’s unrebutted argument that Defendant waived
any potential claim under Crawford v. Washington, 541 U.S. 365 (2004) relating to
Baca’s statement. I would affirm the trial court on this issue and I am not persuaded by
Defendant’s remaining arguments. Therefore, I would affirm his convictions.
{69} The dispute over Baca’s statement originated before trial in Defendant’s efforts to
prevent the State from introducing evidence that the killing had been gang-related.
Defendant argued that there was no foundation for such evidence, but the trial court
agreed with the prosecutor that testimony from Baca, along with other foundational
testimony, would justify its introduction. Defendant filed a motion to reconsider this
judgment, and by the time a hearing was held on the motion, Defendant had been
apprised that Baca would refuse to testify to avoid self-incrimination. Baca had
previously been convicted of crimes relating to this shooting, and was currently
appealing his conviction. Defendant argued that if Baca would not testify, the prosecutor
could not introduce his statement at trial because this would violate Defendant’s rights
under Crawford. 541 U.S. at 59. The prosecutor answered that she planned to offer
limited use immunity to Baca. Defendant raised no further concerns.
{70} Having concluded its discussion of Defendant’s motion to reconsider, the trial
court went on to discuss a separate defense motion in limine, the text of which is
unavailable to us, in which Defendant apparently sought to disqualify the jury panel.
Defendant argued that the jury had been unfairly prejudiced because its questionnaires
17
included details about gangs. Defendant argued that since Baca would not be testifying,
the jury would not actually hear evidence at trial about gangs, because introducing the
statement without the opportunity to cross-examine would violate Crawford. The
prosecutor again explained that
[I]n terms of Crawford, [defense counsel] is correct. If Mr. Baca takes the
stand, refuses to testify, although that makes him unavailable as a witness,
his statement to [the police] was testimonial. I would not be able to walk
up and admit it, and I had not intended to do that. Instead . . . [I am
seeking] an order compelling testimony and granting use immunity. . . .
Once again, Defendant had no response; he never argued before trial that the grant of
limited use immunity would not satisfy his need to cross-examine Baca.
{71} As the prosecutor indicated, Baca was present in court during trial, and the
prosecution was prepared to call him as a witness. Based on discussions the prosecutor
had with Baca’s attorney, she confirmed that Baca intended to invoke his Fifth
Amendment privilege. The trial court asked the prosecutor, “[w]hat are you going to be
asking of Mr. Baca at this time?” The prosecutor responded that she would seek to
compel his testimony, having granted him use immunity for testimony relating to his
statement. The prosecutor elaborated:
I would ask him if he recalled the interview, did he recall being
mirandized or not, and asking very specific questions about what he told
her. Where he was, who he was with. What car he was driving. They
encountered a black truck. When the black truck turned on Churchill his
interview states that they began firing at the Saturn with a weapon, and I
believe his statement also says he yelled at them “f--- you,” I believe it
was, and at that point he was shot in the hand.
While on the witness stand, Baca asked the trial court about the penalty for contempt of
court. Apparently unsure, the trial court asked counsel to comment. The prosecutor
indicated that the penalty could be up to a year. Defendant’s attorney made a vague
reference to a pretrial motion regarding Crawford and his inability to cross-examine
Baca, which from his perspective led to the State’s legal position, apparently referring to
the grant of use immunity.
{72} After being satisfied that Baca would invoke his Fifth Amendment privilege, the
trial court turned to the issue of use immunity. The prosecutor argued that it would be in
the interest of justice if Baca were compelled to testify about his statement to the police,
noting that it contained evidence favorable to Defendant. Defendant’s attorney stated
that he reiterated his arguments prior to trial “regarding the Crawford problems”:
We reiterate our arguments, Judge, made prior to the trial beginning
18
regarding the Crawford problems. We still feel there’s some restriction if
the testimony is permitted without the opportunity to fully cross-examine
him. We realize the State is attempting to obviate that by seeking the
motion, the granting of the motion, which would then make it a fifth
amendment problem. But we do not concur in the motion. We still want
to be able to fully cross-examine the gentleman if he testifies at all, but we
realize that there are certain limitations. The State may have successfully
but we are in opposition because we feel it’s too restrictive in cross-
examination.
This was the only discussion to which Defendant cited in his brief in chief as evidence
that he preserved the Crawford issue. Defendant did not point this Court to the
discussion he was reiterating, and although I have scoured the record, I have been unable
to find any prior discussion relevant to this topic. This explanation was nothing more
than an unilluminating repetition of Defendant’s pretrial assertion, to which the
prosecutor had agreed, that he was entitled to cross-examine Baca about the statement he
gave to the police. Importantly, no one contended that Defendant’s attorney could not
cross-examine Baca about the statement. This simply was not a situation where the
statement itself was being tendered in lieu of live testimony. Baca was in the courtroom
and the trial court was considering whether to compel him to answer the questions the
prosecutor intended to ask.
{73} In any event, Baca opposed use immunity because he did not believe that his
testimony was relevant. The prosecutor rebutted this argument by pointing out that Baca
was one of the few witnesses who was directly involved in the incident. Significantly,
Defendant’s attorney agreed that the testimony would be relevant. After taking a recess
to consult case law, the trial court announced that Baca’s statement was relevant to the
case and then granted Baca use immunity.
{74} After the trial court announced its decision, Baca’s attorney asked if the
prosecutor could simply inquire whether Baca made the statement. The prosecutor
explained her preference for asking questions, not just admitting the statement:
So what I would prefer to do is let him go over the statement, even keep a
copy with him, and then basically just walk through it and say, “Did you
talk to Mary Ann Wallace,” in a semi-leading way, “on this date? Did she
mirandize you, give you rights? Did you waive the rights?”
“Yes, I did.[”]
“Did you tell her what happened that day?[”]
“Yes, I did.”
19
“And can you tell us who you were with,” which is in the
statement, and not go outside of asking him anything that is not in the
statement, but basically allowing him to answer instead of me feeding him
the answers.
Defendant’s attorney then asked the trial court whether the transcript would go to the
jury. The trial judge indicated that he did not know. While the prosecutor was
explaining how she would question the witness, the court apparently asked Defendant’s
attorney, “[w]ell, you want the transcript?” Defendant’s attorney explained that he did
want the transcript to go to the jury:
I think I do want it. If we are going to get into it, I think the whole thing
has to go in. I think the transcript is an accurate transcription, but it seems
consistent, and I certainly can’t get anything better off my hearing of the
actual tape, so I figure if we will be asking questions, it does capture the
excitement, much of the 911 transcript does, of the young men that were,
at one point or another, in both vehicles. So I think that would move
matters along better. We wouldn’t have to walk him through, “Did you
say this, did you say that.” If it goes in, what is exciting or meaningful is
the manner in which it’s said. I think as [the State] said, it does help us in
the search for truth.
Baca’s attorney then interjected that he was still concerned because the prosecution
seemed to want to ask questions such as “[i]s this what happened that night,” instead of
questions about the statement. Defendant’s attorney then interjected his perspective that
it would be less prejudicial to the defense if the statement were introduced with Baca
acknowledging its contents, given the trial court’s rulings. What rulings were alluded to
by Defendant’s attorney are unclear, since the only ruling at this point was that use
immunity would be granted to Baca, and that Baca would be compelled to testify about
the contents of his statement to the police. The mechanics for getting the information
before the jury remained at issue. The State wanted the standard question-and-answer
format, but Baca’s attorney and Defendant’s attorney wanted the statement transcript
admitted instead.
{75} The prosecutor explained that she did not object to stipulating to the transcript,
but astutely inquired “[b]y merely stipulating to the transcript, my next question would be
is he then waiving, essentially waiving, his right to cross-examine Mr. Baca by
stipulating to the transcript being admitted?” The prosecutor clearly recognized that
admitting the statement without cross-examination could raise doubts about whether the
Crawford problem had truly been solved. If Defendant wanted the statement admitted,
the prosecutor was demanding that he specify that he was voluntarily foregoing cross-
examination.
{76} Unsure of what Defendant was thinking, the trial court turned to Defendant’s
20
attorney for clarification. Defendant’s attorney said that Defendant was not waiving his
argument based on Crawford, although yet again Defendant has not pointed this Court to
the argument on which he relies, and none is evident from a review of the record.
Because Defendant was not waiving his right to cross-examine Baca, the prosecution
pointed out that it could not “merely stipulate to the statement.” The trial court agreed.
The prosecutor then went on to state, “[i]n those terms, I would have to have Mr. Baca
testify as to what he said and allow Mr. Samore to cross-examine him on that testimony,
whatever the questions may be. And obviously, if he got outside of what Mr. Baca
testified, then he has a fifth amendment privilege.”
{77} This exchange confirms that the State was not restricting Defendant’s right to
cross-examine Baca about the statement. This is simply not a Crawford violation.2
“[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause
places no constraints at all on the use of his prior testimonial statements. . . . The Clause
does not bar admission of a statement so long as the declarant is present at trial to defend
or explain it.” Crawford, 541 U.S. at 59. As the majority points out, Crawford protects
the right to cross-examine on the statement. Majority Opinion, ¶ 28.
{78} Defendant’s attorney, recognizing that the State would be unwilling to simply
admit the statement as evidence without a waiver, quickly made an interjection to find
out what the trial court was suggesting by “waiving any cross-examination at this point in
the proceedings we could put the statement in and both sides would waive cross?” When
the trial court verified that this was indeed what it was thinking, Defendant’s attorney
stated unequivocally, “[w]e would be willing to do that.”
{79} Although I conclude that this was enough to show that Defendant waived his right
to cross-examine Baca about the statement, the trial court exercised greater caution.
After Defendant’s attorney indicated that he might want to ask Baca to verify a picture of
Baca’s injured hand, the trial court asked, “Do you agree that would satisfy your need to
cross?” Defendant’s attorney flatly stated, “[y]es, judge.” Leaving nothing to chance,
the trial court went on to ask, “Mr. Samore, I want to be sure on the record that you are
comfortable at this point asking that the sole question that you would ask, or that you will
be asking of Mr. Baca about this and agreeing to waive further cross?” “At this point I
am[,]” replied Defendant’s attorney, although he cautioned that questions made by the
prosecution might require him to ask more questions, in which case he would approach
the bench before doing so.
{80} With this agreement on the record, the jury returned to open court and Baca
testified. After Baca identified the statement he made to the investigating officer, the
1
If Defendant’s concern was the limited scope of Baca’s use immunity, he should
have alerted the trial court to this concern with something more than a vague reference to a
right to “fully cross-examine.”
21
prosecutor announced, “Your Honor, the parties have stipulated to the admission of
State’s Exhibit 123 which is the transcript of Mr. Baca’s statement, as given to Detective
Mary Ann Wallace on April 16, 2004.” Defendant’s attorney noted his concurrence and
Defendant’s concurrence and chose not to ask Baca any questions.
{81} Because Baca’s statement was not admitted in lieu of live testimony except with
Defendant’s prompting, I would find that Defendant waived his right to cross-examine
Baca about the statement. Had Defendant not sought to have the transcript introduced, it
is clear from the record that his attorney could have cross-examined Baca about the
statement. The Confrontation Clause does not require more, and as such I must
respectfully dissent.
EDWARD L. CHÁVEZ, Chief Justice
I CONCUR:
PETRA JIMENEZ MAES, Justice
TOPIC INDEX FOR STATE V. ZAMARRIPA, NO. 30,210
Appeal and Error
AE-PA: Preservation of Issues for Appeal
Constitutional Law
CT-CT: Confrontation
CT-PS: Prior Statement
CT-SI: Self-incrimination
CT-WR: Waiver of Rights
Evidence
EV-AE: Admissibility of Evidence
EV-AV: Availability of Witness
EV-WI: Witness Immunity
22