State v. Tollardo

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integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'05- 15:31:29 2012.11.29

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMSC-008

Filing Date: March 29, 2012

Docket No. 31,241

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

STEVE TOLLARDO,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
Eugenio S. Mathis, District Judge

Jacqueline L. Cooper, Acting Chief Public Defender
William A. O’Connell, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Gary K. King, Attorney General
Francine Ann Baca-Chavez, Assistant Attorney General
Santa Fe, NM

for Appellee

OPINION

SERNA, Justice.

{1} Defendant Steve Tollardo was convicted by a jury of first-degree murder (accessory),
kidnapping (accessory), conspiracy to commit murder, and conspiracy to commit
kidnapping. He was acquitted of aggravated arson (accessory) and conspiracy to commit
aggravated arson. This Court has jurisdiction over Defendant’s direct appeal pursuant to
Article VI, Section 2 of the New Mexico Constitution and Rule 12-102(A)(1) NMRA.

{2} We address only one of the issues Defendant raises on appeal: whether the district

1
court erred in advising the jury that two other individuals were convicted of conspiracy to
commit second-degree murder in connection with the same homicide underlying the charges
against Defendant. We conclude that the district court did err in mentioning the co-
conspirators’ convictions, and that the error was not harmless. Accordingly, we reverse
Defendant’s convictions and remand to the district court for a new trial. In reaching this
holding, we reexamine our harmless error analysis and clarify that a review of the particular
circumstances in each case, rather than mechanical application of a multi-factor test, must
guide the inquiry into whether a given trial error requires reversal.

I. BACKGROUND

{3} This appeal arises out of the gruesome killing of Juan Alcantar (Victim) in Taos on
September 6-7, 2003. The underlying facts of the crime are detailed in the Court’s prior
opinion in State v. Gallegos, 2011-NMSC-027, ¶¶ 5-14, 149 N.M. 704, 254 P.3d 655, which
resolved an appeal filed by Lawrence Gallegos, one of Defendant’s co-conspirators.
Additional facts are set forth below to provide context for the resolution of the present
appeal.

{4} Testimony at Defendant’s trial established the following sequence of events. On the
night of September 6, 2003, Defendant and Victim visited a sports bar in Taos, where they
were denied entry. Ivan Romero, a friend of Defendant, exited the sports bar, approached
Defendant and Victim in the bar’s parking lot, and punched Victim. Defendant and Victim
then left the parking lot together, and Ivan Romero left separately.

{5} Later that night, Defendant and Victim were “kicking back” at Richard Anaya’s
house with Anaya himself, Gallegos, Luis Trujillo, and Racquel Gonzales, later joined by
Ivan Lujan. Apparently without warning, Trujillo and Gallegos began kicking and hitting
Victim. Defendant and Trujillo then drove to the house of Elias Romero, the father of Ivan
Romero. Elias Romero was in the house along with his girlfriend Michelle Martinez, who
would be the State’s main witness, and his nephew Jaime Romero. Defendant, who
appeared “hyped up,” told the occupants of the house about the altercation between Ivan
Romero and Victim and added that Victim was tied up at Anaya’s house. Defendant
explained that after the incident at the sports bar he had gone to see Ivan Romero, who
disliked Victim and suggested that Elias Romero “would know what to do” with Victim.
Defendant also told Elias Romero that Victim had a gun and had threatened to kill Ivan
Romero. Jaime Romero mentioned that he had “some soldiers” who could “take care of it.”
Defendant replied that it was not his “viaje,” meaning not his problem. Elias Romero gave
a syringe containing a lethal dose of heroin to Martinez and instructed her to “inject
[Victim] and make it look like he overdosed.”

{6} Martinez then traveled with Defendant and Trujillo to Anaya’s house. When they
arrived, Victim was lying on the kitchen floor with his hands tied and a black eye. Gallegos
was standing over Victim with a kitchen knife. Martinez sat on Victim’s hand and injected
him with the lethal dose of heroin. Victim cried out to Defendant for help and said, “Steve,

2
please help me.” Defendant told Victim that “he shouldn’t have fucked with Diablo,” a
nickname for Ivan Romero.

{7} After Victim stopped moving and Martinez believed him to be dead, Defendant,
Gallegos, and Trujillo moved Victim onto a tablecloth. The other individuals, Anaya, Lujan,
and Gonzales, were elsewhere in the house during this time. When Victim was moved onto
the tablecloth, he began moaning. Martinez was afraid that Victim might regain
consciousness, so she instructed Defendant, Gallegos, and Trujillo to leave Victim alone.
A short time later, Defendant and Gallegos carried Victim to Victim’s car and placed him
on the passenger’s seat.

{8} Martinez testified that “the plan” laid out by Elias Romero was for her to drive
Victim’s car and leave Victim in a secluded place to make it appear as though Victim died
of a drug overdose. Martinez drove Victim’s car with Gallegos and Victim inside,
attempting to follow Defendant and Trujillo who were driving in a separate car. Martinez
was unable to follow Defendant and Trujillo, so she drove to a nearby church parking lot.
Eventually, Defendant and Trujillo arrived at the parking lot, at which point Martinez and
Gallegos got into the car with Defendant and Trujillo, leaving the unconscious Victim in his
car.

{9} During the drive back to Elias Romero’s house, Gallegos and Defendant discussed
burning Victim’s car to destroy Gallegos’ fingerprints and other evidence that might show
that Victim did not die of a drug overdose. At Elias Romero’s house, Gallegos obtained
lantern fuel and left with Defendant and Trujillo. Some time later, Defendant, Gallegos, and
Trujillo returned once again to Elias Romero’s house. Defendant told Martinez that he,
Gallegos, and Trujillo used the lantern fuel and a cherry bomb to set fire to Victim’s car with
Victim inside.

{10} Seven individuals were prosecuted in connection with Victim’s death: Defendant,
Lawrence Gallegos, Luis Trujillo, Elias Romero, Michelle Martinez, Jaime Romero, and
Ivan Romero. Gallegos was convicted by a jury of first-degree murder, aggravated arson,
kidnapping, and three counts of conspiracy. Id. ¶ 2. Trujillo was convicted by a jury of
first-degree murder, aggravated arson, conspiracy to commit first-degree murder, conspiracy
to commit kidnapping, and conspiracy to commit aggravated arson. Trujillo, No. 31,500,
slip op. at 2 (N.M. Sup. Ct. June 27, 2011). Elias Romero was acquitted of first-degree
murder and conspiracy to commit first-degree murder. Martinez pleaded guilty to
conspiracy to commit first-degree murder. Jaime Romero and Ivan Romero also resolved
the charges against them through pleas, with the former apparently pleading guilty to
conspiracy to commit second-degree murder, and the latter pleading no contest to the same
charge.1 This Opinion will refer to these latter two pleas as “the Romeros’ pleas” or “the

1
The record is not conclusive as to whether Jaime Romero and Ivan Romero entered
pleas of guilty or no contest to conspiracy to commit second-degree murder, although the

3
Romeros’ convictions.”

{11} At Defendant’s trial, defense counsel acknowledged during his opening statement
that Defendant was present at the home of Richard Anaya on September 6-7, 2003, where
Victim was forcibly held before being killed. Defense counsel asked the jury to “look
closely” at Defendant’s “real involvement” in Victim’s death, explaining that “it’s not
enough that [Defendant] was there. . . . There has to be something more by the State to show
that [Defendant] actually helped, encouraged or caused this crime to be committed.”
Amplifying this point, defense counsel stated that three other individuals who were also
present at Anaya’s home that night–Anaya himself, Racquel Gonzales, and Ivan Lujan–were
not charged in connection with Victim’s death. Defense counsel clarified that while Anaya
was charged initially, the State dropped charges after further investigation.

{12} Later on in the trial, during direct examination of John Wentz, a detective with the
Taos Police Department who investigated Victim’s death, the prosecutor asked if Detective
Wentz had personal knowledge as to whether Ivan Romero and Jaime Romero had been
convicted in connection with Victim’s death. Defense counsel objected that the question
was irrelevant. Outside the presence of the jury, the State responded that the disposition of
the charges against Ivan Romero and Jaime Romero was relevant because

[w]ithout asking that question, we would be left with the jury wondering
what happened, if Ivan and Jaime were ever convicted. . . .

For the jury not to have any information as to the particular people
who this detective’s investigation revealed, their not having been charged
and convicted would leave a hole in the evidence for the jury that we believe
we could fill this way.

{13} The district court acknowledged that defense counsel’s objection “[wa]s somewhat
well taken in that this testimony [wa]s being offered to prove the truth of the matter
asserted.” Nevertheless, the district court decided that the fact that Ivan Romero and Jaime
Romero were convicted through pleas in connection with Victim’s death would be presented
to the jury, and that the “best route” to doing so would be for the court to take judicial notice
of the Romeros’ pleas rather than allowing Detective Wentz to testify on that matter.

{14} After the State rested its case (the defense did not call any witnesses), and before
closing arguments, the district court informed the jury that

district court and counsel consistently referred to Ivan Romero as having pleaded no contest
to the charge.

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 there are certain facts that you must accept as true. You can give them whatever
weight you want to give it [sic]. But there was a question asked of Detective
Wentz while he was testifying as to whether or not certain people have been
convicted. I am going to instruct you, without requiring testimony or otherwise,
that the court has taken notice that Jaime and Ivan Romero were convicted of
conspiracy to commit second degree murder. Ivan Romero was convicted
pursuant to a no contest plea. A no contest plea means that a defendant does not
admit or deny guilt, but will accept a conviction.

You may, but are not required to accept this as a fact. And you may give
this evidence whatever weight you believe it deserves.

The jury convicted Defendant on the charges listed above, including first-degree murder.
This appeal followed.

II. DISCUSSION

A. Admitting the Romeros’ Convictions Violated Defendant’s Sixth Amendment
Right to Confrontation

{15} Defendant argues that introducing the Romeros’ convictions to the jury violated his
right, under the Sixth Amendment to the United States Constitution, to confront the
witnesses against him. Claimed violations of the Sixth Amendment right to confrontation
are reviewed de novo. State v. Cabezuela, 2011-NMSC-041, ¶ 49, 150 N.M. 654, 265 P.3d
705. Under the Sixth Amendment, every criminal defendant “shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend. VI. “[T]his bedrock
procedural guarantee applies to both federal and state prosecutions.” Crawford v.
Washington, 541 U.S. 36, 42 (2004). The Confrontation Clause “applies to witnesses against
the accused–in other words, those who bear testimony. Testimony, in turn, is typically [a]
solemn declaration or affirmation made for the purpose of establishing or proving some
fact.” Id. at 51 (internal quotation marks and citation omitted).

{16} The United States Supreme Court, however, to date has avoided establishing a firm
definition of what constitutes a “testimonial statement.” Id. Instead, the Supreme Court has
identified a “core class” of testimonial statements:

[E]x parte in-court testimony or its functional equivalent–that is, material
such as affidavits, custodial examinations, prior testimony that the defendant
was unable to cross-examine, or similar pretrial statements that declarants
would reasonably expect to be used prosecutorially, extrajudicial statements
. . . contained in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions, statements that were made under
circumstances which would lead an objective witness reasonably to believe
that the statement would be available for use at a later trial.

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Id. at 51-52 (internal quotation marks and citations omitted). These formulations “all share
a common nucleus.” Id. at 52. “[A]t a minimum,” the Supreme Court explained, the term
“testimonial” covers “testimony at a preliminary hearing, before a grand jury, or at a formal
trial.” Id. at 68. Considering the types of statements deemed to be testimonial by the United
States Supreme Court, this Court recently noted that “[w]hat these examples have in
common is that they lend themselves to an analysis that focuses largely on surrounding
circumstances to separate testimonial from non-testimonial statements.” State v. Mendez,
2010-NMSC-044, ¶ 29, 148 N.M. 761, 242 P.3d 328. We therefore look at the
circumstances surrounding how pleas of guilty and no contest are entered in New Mexico
to determine whether such pleas are testimonial or non-testimonial statements.

{17} Before a court accepts a defendant’s plea of guilty or no contest, the court must first
personally address the defendant in open court, “informing the defendant of and determining
that the defendant understands” certain rights and consequences surrounding the plea offer.
Rule 5-303(F) NMRA. Once the court has so informed the defendant and determined that
the defendant understands those rights and consequences, the court must then determine that
the defendant is entering a plea of guilty or no contest voluntarily. Rule 5-303(G); see also
State v. Garcia, 1996-NMSC-013, 121 N.M. 544, 546-47, 915 P.2d 300, 302-03 (describing
the procedures New Mexico courts follow to ensure that a defendant’s guilty plea is knowing
and voluntary).

{18} The procedures a court must follow in accepting a defendant’s plea ensure that the
defendant knows and understands the gravity of the statement he or she is about to make, and
that the defendant is making the statement voluntarily, to a judge in open court, with a full
understanding of his or her rights and the consequences of making such a statement. Under
these circumstances, a plea is more akin to “a formal statement to government officers” than
“a casual remark.” Crawford, 541 U.S. at 51. It is reasonable to conclude that such a
knowing and voluntary statement “would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial.” Id. at 52. We hold, therefore, that
a plea of guilty or no contest constitutes a “testimonial statement” under Crawford. See
United States v. McClain, 377 F.3d 219, 221 (2d Cir. 2004) (“[I]t is clear that a plea
allocution constitutes testimony, as it is formally given in court, under oath, and in response
to questions by the court or the prosecutor.”); State v. Fields, 168 P.3d 955, 965 (Haw. 2007)
(listing “plea allocutions” as “undeniably testimonial under the sixth amendment”); People
v. Duff, 872 N.E.2d 46, 50 (Ill. App. Ct. 2007) (concluding that a co-defendant’s guilty plea
is “testimonial” under Crawford); see also United States v. Massino, 319 F. Supp. 2d 295,
298 (E.D.N.Y. 2004); Morten v. State, 856 A.2d 595, 600 (D.C. 2004). As a testimonial
statement, a co-defendant’s plea of guilty or no contest is inadmissible against a defendant
to prove the truth of the matter asserted unless the demands of the Confrontation Clause have
been met, in other words that the defendant has an opportunity to cross-examine the co-
defendant concerning the plea agreement. See Crawford, 541 U.S. at 53-54 (holding that a
prior opportunity to cross-examine the witness satisfies the Confrontation Clause).

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{19} In Kirby v. United States, the United States Supreme Court held that it was a
violation of the Confrontation Clause to admit the convictions of co-defendants to prove a
“vital fact involved in the charge against” a defendant. 174 U.S. 47, 61 (1899). This Court
adopted that holding in State v. Martino, ruling that the guilty plea of a gambler could not
be admitted against the defendant, who was standing trial for permitting the gambling to take
place on his premises. 25 N.M. 47, 47, 176 P. 815, 815-16 (1918) (citing Kirby, 174 U.S.
47). We reiterated this principle in State v. Jackson, where we reversed a defendant’s
convictions and noted that a co-defendant’s guilty plea was “particularly not admissible as
to elements of the offense as against a person not a party to the proceeding.” 47 N.M. 415,
415, 143 P.2d 875, 877 (1943). Similarly, in State v. Urioste, the Court of Appeals
addressed a situation where a defendant was charged with conspiracy to commit murder. 94
N.M. 767, 768, 617 P.2d 156, 157 (Ct. App. 1980). The theory of the State’s case was that
the defendant conspired with another person to kill the victim. Id. The State asked the court
to take judicial notice that the co-defendant pleaded guilty to conspiracy to commit murder,
arguing that the conviction was relevant “to prove that this man was part of the conspiracy,
admitted that he was, in fact, a member of that conspiracy, and that he did, in fact, conspire
with [the defendant].” Id. at 768-69, 617 P.2d at 157-58 (internal quotation marks omitted).
The Court of Appeals held that it was error to admit the co-defendant’s convictions
“[b]ecause it deprived [the defendant] of the right to confront witnesses against her.” Id. at
769, 617 P.2d at 158; see also Bisaccia v. Att’y Gen. of the State of N.J., 623 F.2d 307, 314
(3d Cir. 1980) (Seitz, J., concurring) (reasoning that admitting the guilty plea of another
person violated the defendant’s confrontation rights, not with respect to the person who
tendered the plea but with respect to “the witnesses that the government would have
presented in a trial of the third person”).

{20} Defendant argues that the conviction of a co-defendant is entirely inadmissible at
trial. A co-defendant’s conviction, however, may be admissible when it is introduced to
impeach that co-defendant if he or she testifies, rather than as substantive evidence of the
defendant’s guilt. See State v. Gilbert, 98 N.M. 77, 83, 644 P.2d 1066, 1072-73 (Ct. App.
1982) (distinguishing Jackson and Urioste and allowing the admission of the co-defendants’
convictions because “the purpose of questioning [the co-defendants] regarding their guilty
pleas clearly was not solely to prove existence of a conspiracy in which [the] defendant
participated,” but was also used to attack the credibility of those co-defendants); see also
United States v. Baez, 703 F.2d 453, 455 (10th Cir. 1983) (“[E]ither the government or the
defense may elicit evidence of a guilty plea for the jury to consider in assessing the
codefendant’s credibility as a witness.”).

{21} Indeed, here defense counsel elicited testimony from Martinez about her guilty plea
in connection with Victim’s death in an effort to impeach her credibility. In contrast to
Martinez, neither Jaime Romero nor Ivan Romero testified at Defendant’s trial, and thus
their credibility was never at issue. Their convictions, therefore, could not be admissible for
impeachment purposes under the above rationale.

{22} We reject the State’s claim that the otherwise inadmissible convictions were properly

7
placed before the jury to remedy the assertedly “unfair” reference by defense counsel to the
fact that other named individuals (Anaya, Gonzales, and Lujan) had not been charged in
connection with Victim’s death. When a defendant makes a claim that “opens the door” to
inadmissible evidence, the doctrine of curative admissibility in some circumstances may
permit the State to rebut that claim with otherwise inadmissible evidence. See State v. Ruiz,
2001-NMCA-097, ¶ 47, 131 N.M. 241, 34 P.3d 630 (citing State v. Baca, 120 N.M. 383, 390
n.2, 902 P.2d 65, 72 n.2 (1995)). The State, however, does not explain the supposed
equivalence between the convictions of the Romeros (who were not present at Anaya’s
house where Victim was held against his will prior to being killed), and defense counsel’s
statement that no charges were filed against Anaya, Gonzales, and Lujan (who were present
at Anaya’s house).2 Furthermore, the prosecutor sought testimony about and the district
court took judicial notice of the Romeros’ convictions, not just the charges filed against
them. We need not decide here whether the doctrine of curative admissibility may be used
to admit testimonial statements in violation of the Confrontation Clause, because curative
admissibility is inapplicable to this case.

{23} The district court’s effective admission of the Romeros’ testimonial plea agreements,
therefore, violated Defendant’s Sixth Amendment right to confront the witnesses against
him. See, e.g., State v. Lopez, 2007-NMSC-037, ¶ 21, 142 N.M. 138, 164 P.3d 19 (finding
a “per se” Sixth Amendment violation in admitting testimonial statements of co-defendants
who did not testify at the defendant’s trial where the defendant did not have an opportunity
to cross-examine the co-defendants).

{24} Although not necessary for the resolution of this appeal, we note that the introduction
of the Romeros’ convictions also presents a serious due process problem. Every criminal
defendant has a right “to have his guilt or innocence determined by the evidence presented
against him, not by what has happened with regard to a criminal prosecution against
someone else.” United States v. Toner, 173 F.2d 140, 142 (3d Cir. 1949); see also Bisaccia,
623 F.2d at 312-13 (relying in part on Toner, holding that admission of a co-conspirator’s
guilty plea violated the defendant’s due process rights, and remanding to the district court
for harmless error review). Just as it would be improper to allow the introduction of a co-
conspirator’s acquittal to show that the defendant himself should be acquitted, it would be
similarly improper to admit evidence of a non-testifying co-conspirator’s conviction to

2
The prosecutor obtained testimony that easily could have been used to dispel any
concern that the jury would be confused about the role of different individuals in the events
leading up to Victim’s death. For instance, Detective Wentz testifiedthat in his interview
with Martinez, she implicated some individuals as being involved in Victim’s death and
others as merely being present at Anaya’s house. Martinez herself testified on direct
examination that she never saw Anaya, Gonzales, or Lujan “do anything” to Victim. And
Detective Wentz testified that another individual, Elias Romero, was charged in connection
with Victim’s death.

8
establish that the defendant himself is guilty. See United States v. Sanders, 95 F.3d 449, 454
(6th Cir. 1996) (“[U]nder a parallel treatment for guilty pleas and acquittals, [a co-
conspirator’s] acquittal may not be admitted” (citing United States v. Fernandez-Roque, 703
F.2d 808, 813 (5th Cir. 1983))). Here, even though the district court recognized the danger
in allowing testimony about Ivan and Jaime Romero’s involvement in Victim’s murder, it
nonetheless informed the jury about the Romeros’ convictions. By instructing the jury that
the convictions were facts that it “must accept as true,” the district court created the risk that
Defendant’s guilt or innocence would in some part be determined by “what . . . happened
with regard to a criminal prosecution against someone else.” Toner, 173 F.2d at 142.

B. Applicable Standard for Harmless Error Review

{25} Improperly admitted evidence is not grounds for a new trial unless the error is
determined to be harmful. State v. Macias, 2009-NMSC-028, ¶ 37, 146 N.M. 378, 210 P.3d
804; State v. Barr, 2009-NMSC-024, ¶ 47, 146 N.M. 301, 210 P.3d 198. A “very limited
class of errors,” not at issue here, is deemed structural and is not reviewed for harmless error
but instead “require automatic reversal.” State v. Alvarez-Lopez, 2004-NMSC-030, ¶ 51,
136 N.M. 309, 98 P.3d 699. Where, as here, a constitutional error has been established, the
State bears the burden of proving that the error is harmless. See, e.g., State v. Gutierrez,
2007-NMSC-033, ¶ 18, 142 N.M. 1, 162 P.3d 156 (“The State has the burden of establishing
that [a] constitutional error was harmless beyond a reasonable doubt.” (internal quotation
marks and citation omitted)).

{26} The concept of harmless error arose “as a reaction to an era marked by automatic
reversal of cases for any procedural error.” Barr, 2009-NMSC-024, ¶ 47 (citing 7 Wayne
R. LaFave et al., Criminal Procedure § 27.6(a), at 99-100 (3d ed. 2007)). The harmless error
rule originally developed outside the context of constitutional review, simply to “require
appellate courts to affirm lower courts notwithstanding technical errors, defects, or
exceptions which did not affect the substantial rights of the parties.” Barr, 2009-NMSC-
024, ¶ 48 (quoting 7 LaFave, supra, § 27.6(a) at 101 internal quotation marks and brackets
omitted)).

{27} Although not always employing the term “harmless error,” New Mexico courts
historically evaluated claims of error by inquiring into how severely the defendant was
affected thereby. In State v. Coyle, for example, this Court considered whether or not a trial
error worked a “prejudice” against the defendant, concluding that the error was harmless
because “[n]one of the evidence here in question could have influenced the jury.” 39 N.M.
151, 155, 42 P.2d 770, 772 (1935); see also State v. Pruett, 22 N.M. 223, 235, 160 P. 362,
366 (1916) (A trial error was not harmless because improperly admitted testimony was
“highly prejudicial” to the defendant.); State v. Varos, 69 N.M. 19, 23, 363 P.2d 629, 631
(1961) (improperly admitted testimony about a lie-detector test was reversible error because
its “net effect . . . was to cast doubt upon the truth and veracity of the defendant in a manner
not countenanced by the courts,” thereby “taint[ing]” the jury’s verdict.); State v. Rowell, 77
N.M. 124, 128, 419 P.2d 966, 969 (1966) (The prosecution’s inquiry into the defendant’s

9
prior conviction “was fraught with such harm to defendant as to be irremediable.” (internal
quotation marks and citation omitted)).

{28} In the 1960s, “with the unprecedented expansion of federal constitutional protections
into the criminal process, harmless error analysis was imported into the constitutional
context.” Barr, 2009-NMSC-024, ¶ 49 (citing 7 LaFave, supra, § 27.6(a) at 101). In Fahy
v. Connecticut, the United States Supreme Court held that the erroneous admission of
unconstitutionally obtained evidence required reversal, noting that the Supreme Court was
“not concerned . . . with whether there was sufficient evidence on which the [defendant]
could have been convicted” absent the erroneously admitted evidence, but rather whether
there was a “reasonable possibility that the evidence complained of might have contributed
to the conviction.” 375 U.S. 85, 86-87 (1963). The Supreme Court refined this principle in
Chapman v. California, holding that “before a federal constitutional error can be held
harmless, the court must be able to declare a belief that it was harmless beyond a reasonable
doubt,” 386 U.S. 18, 24 (1967), which tracked the prosecution’s burden of proof for
establishing guilt in the first instance. The Supreme Court made clear that constitutional
errors meeting this standard would be found “so unimportant and insignificant that they may,
consistent with the Federal Constitution, be deemed harmless, not requiring the automatic
reversal of the conviction.” Id. at 18, 22. Within a few years, appellate courts in New
Mexico were applying this emerging federal constitutional standard to their harmless error
review.3 See, e.g., State v. Jones, 80 N.M. 753, 753-54, 461 P.2d 235, 235-36 (Ct. App.
1969) (State failed to show beyond a reasonable doubt that a prosecutor’s comment to the
jury about the defendants’ failure to testify was harmless.); State v. Spearman, 84 N.M. 366,
369, 503 P.2d 649, 652 (Ct. App. 1972) (State did not meet its burden to show beyond a
reasonable doubt that the trial court’s failure to give a jury instruction was harmless.).

{29} In 1980, this Court departed significantly from the harmless error standard developed
in Fahy and Chapman, and announced a new three-part test for reviewing courts to apply in
their harmless error analysis:

For an error by the trial court to be considered as harmless, there must be:
(1) substantial evidence to support the conviction without reference to the
improperly admitted evidence, (2) such a disproportionate volume of
permissible evidence that, in comparison, the amount of improper evidence
will appear so minuscule that it could not have contributed to the conviction,
and (3) no substantial conflicting evidence to discredit the State’s testimony.

3
Our Rules of Criminal Procedure also explicitly recognize the concept of harmless
error and instruct courts that trial errors are not grounds for “granting a new trial or for
setting aside a verdict, for vacating, modifying or otherwise disturbing a judgment or order,
unless refusal to take any such action appears to the court inconsistent with substantial
justice.” Rule 5-113(A) NMRA; Rule 6-704(A) NMRA; Rule 7-704(A) NMRA; Rule 8-
704(A) NMRA.

10
State v. Moore, 94 N.M. 503, 504, 612 P. 2d 1314, 1315 (1980).

{30} In Moore, the defendant was convicted of criminal sexual penetration, among other
crimes. Id. He appealed his convictions to the Court of Appeals on the ground that the trial
court erred in permitting the prosecution to admit testimony of the victim concerning her
mental state following the rape. Id. “The Court of Appeals reversed on the basis of possible
prejudice from the admission into evidence of improper testimony.” Id. On review, this
Court agreed with the Court of Appeals’ conclusion that the victim’s testimony was
improperly admitted. Id. The Court went on, however, to apply the three-part test quoted
above to conclude that the erroneous admission of the victim’s testimony was harmless. Id.

{31} Moore announced the three-part test without analysis or persuasive precedent. The
two cases cited in support, State v. Day, 91 N.M. 570, 577 P.2d 878 (Ct. App. 1978), and
State v. Self, 88 N.M. 37, 536 P.2d 1093 (Ct. App. 1975), neither adopted the three-part test
nor provided a logical foundation for its use. Rather, Day held that an error is only harmless
if the reviewing court concludes “that the evidence of guilt was so overwhelming that there
is no reasonable probability that the misconduct contributed to the conviction.” 91 N.M. at
573-74, 577 P.2d 878, 881-82.4 Self cited two prior Court of Appeals opinions, neither of
which anticipates the three-part test created by Moore. One of those opinions, State v.
Thurman, explained that an error would be treated as harmless if there was “no reasonable
possibility that evidence improperly admitted, and then stricken by the trial court,
contributed to the conviction.” 84 N.M. 5, 9, 498 P.2d 697, 701 (Ct. App. 1972) (citing
Schneble v. Florida, 405 U.S. 427 (1972)). The other opinion, State v. Lopez, determined
that a trial error was harmless because “‘[t]he evidence, exclusive of the improperly admitted
exhibits, points so overwhelmingly5 to the guilt of defendant of the crime of which he was
convicted, that there is no reasonable possibility that the admission into evidence of these
improperly received exhibits contributed to his conviction.’” 80 N.M. 599, 458 P.2d 851
(Ct. App. 1969) (quoting State v. Gray, 79 N.M. 424, 428, 444 P.2d 609, 613 (Ct. App.
1968)), abrogated on other grounds by State v. Holly, 2009-NMSC-004, 145 N.M. 513, 201
P.3d 844.

4
This holding echoed the standard set forth in Fahy, 375 U.S. at 86-87, although
modified from “reasonable possibility” to “reasonable probability” for reasons the Court of
Appeals did not articulate, but perhaps owing to the non-constitutional nature of the error
at issue. See Barr, 2009-NMSC-024, ¶ 53.
5
The United States Supreme Court’s decision in Schneble is the source of the
principle that “overwhelming” evidence of guilt may help establish harmless error, although
Schneble retained Chapman’s requirement that harmlessness be “clear beyond a reasonable
doubt.” 405 U.S. at 430. Chapman itself expressed hesitation at the “emphasis, and perhaps
overemphasis” of “overwhelming evidence” in harmless error review. 386 U.S. at 23.

11
{32} These opinions from the dozen or so years preceding Moore all provide slightly
different phrasings of the same concept–that a trial error should be held harmless if there is
“no reasonable possibility” (if the claimed error is constitutional in nature) or “no reasonable
probability” (if the claimed error is evidentiary or procedural but does not implicate the
defendant’s constitutional rights) that the error contributed to the defendant’s conviction,
which might be determined in part by the overall strength of the evidence that the State
marshaled against the defendant.

{33} No opinion of this Court prior to Moore, including the cases Moore relied upon that
are discussed above, employed a three-part test for evaluating harmless error, and none
appears to have made any reference to the third Moore factor–the presence or absence of
“substantial conflicting evidence” from the defendant. 94 N.M. at 505, 612 P.2d at 1316.
Moore, then, shifted the harmless error inquiry away from an assessment of an error’s impact
on the verdict, and toward a more mechanical approach that requires appellate courts to
weigh an error against properly admitted evidence in favor of conviction as well as any
contrary evidence discrediting the prosecution’s case. Id.

{34} In addition to lacking a reasoned foundation in New Mexico law for its existence, the
Moore test has never been fully adopted by this Court, casting further doubt on its legitimacy
and utility. While numerous cases have relied on Moore, many other opinions have avoided
discussion of the three-part test altogether and instead followed the well-established
principle of federal harmless error review that whether a given error requires reversal
depends upon the “reasonable possibility” or “reasonable probability” that the error
contributed to the conviction. See, e.g., State v. Gonzales, 2000-NMSC-028, ¶ 42, 129 N.M.
556, 11 P.3d 131 (applying the “reasonable probability” standard to a non-constitutional
error); Alvarez-Lopez, 2004-NMSC-030, ¶ 25 (applying the “reasonable possibility” standard
to a constitutional error); State v. Zamarripa, 2009-NMSC-001, ¶ 52, 145 N.M. 402, 199
P.3d 846 (applying both the “reasonable possibility” standard and the requirement that the
error be proven harmless beyond a “reasonable doubt”). Other opinions, without specifically
invoking the “reasonable possibility” or “reasonable probability” standard, have remained
focused on the likelihood that the error contributed to the underlying verdict. See, e.g., State
v. Paiz, 2011-NMSC-008, ¶ 19, 149 N.M. 412, 249 P.3d 1235 (analyzing whether error in
misjoinder resulted in “prejudice” through a “substantial and injurious effect or influence”
on the verdict (internal quotation marks and citation omitted)); Fuson v. State, 105 N.M. 632,
634, 735 P.2d 1138, 1140 (1987) (determining that impairment of a petitioner’s right to a
peremptory challenge “prejudice[d]” the petitioner, requiring a new trial).

{35} The present appeal is not this Court’s first effort to address Moore’s divergence from
established standards of harmless error review. In Barr, we examined how New Mexico
courts had up to that point applied the Moore test, noting that the test had in some cases
replaced the “reasonable possibility” (or “reasonable probability”) standard in determining
whether an error is harmless. Barr, 2009-NMSC-024, ¶ 52; see also State v. Williams, 117
N.M. 551, 562, 874 P.2d 12, 23 (1994) (Montgomery, C.J., specially concurring) (suggesting

12
that Moore provides a measure of “harmless error” that is different from the “reasonable
possibility” standard).

{36} In Barr, the defendant was tried for the murder of a former roommate. Another
former roommate testified on behalf of the State, and defense counsel attempted to impeach
that witness by citing inconsistencies between his in-court testimony and a videotaped
statement that he had made to police. 2009-NMSC-024, ¶ 17. The State then introduced,
and the district court admitted, the videotaped statement, in which the witness detailed the
defendant’s killing of the victim and reflected on the defendant’s bad character. Id. ¶¶ 13-
16. After being convicted, the defendant appealed on the basis that the admission of the
videotaped statement was improper. Id. ¶ 22. The State responded that even if the
admission of the statement was error, that error was harmless. Id. ¶ 46. We agreed that the
error was harmless, and went on to clarify the standard that appellate courts must apply in
making such determinations. We “re-fortif[ied] the boundary between non-constitutional
and constitutional error for the purpose of harmless error analysis,” id. ¶ 53, explaining that
“it is appropriate to review non-constitutional error with a lower standard than that reserved
for our most closely held rights,” id. ¶ 51, and therefore reviewing courts “should only
conclude that [a constitutional] error is harmless when there is no reasonable possibility it
affected the verdict.” Id. ¶ 53. By comparison, a non-constitutional error is harmless “when
there is no reasonable probability the error affected the verdict.” Id. ¶ 53. Recognizing the
federal constitutional underpinnings for such a distinction, id. ¶¶ 49-51, we observed that
“the reasonable possibility standard continues to resemble the reasonable doubt standard
while the reasonable probability standard requires a greater degree of likelihood that a
particular error affected a verdict.” Id. ¶ 54. We reaffirm that holding here.

{37} Barr then discussed the “long-standing three-part test” from Moore, which we noted
“makes no mention of the ‘reasonable possibility’ standard.” Barr, 2009-NMSC-024, ¶ 52.
We proceeded to sanction the three Moore factors, not as a mandatory test as they had been
utilized to date, but rather as a “useful framework” which would “provide . . . a reliable basis
for determining whether an error is harmless.” Id. ¶ 55. Since Barr, however, courts have
continued to employ the Moore factors as an inflexible test when assessing the harmfulness
of erroneously admitted evidence. See, e.g., State v. Wilson, 2011-NMSC-001, ¶¶ 40-42,
149 N.M. 273, 248 P.3d 315; State v. Tom, 2010-NMCA-062, ¶ 20, 148 N.M. 348, 236 P.3d
660. Because this Court has a responsibility to “correct a judicial misinterpretation of our
caselaw that may otherwise remain on the books as an erroneous precedent,” Rivera v. Am.
Gen. Fin. Servs., Inc., 2011-NMSC-033, ¶ 41, 150 N.M. 398, 259 P.3d 803, we overrule
Moore to the extent that it mandated the three-part test as the proper analytical framework
for reviewing harmless error. For the reasons discussed below, we also overrule that portion
of Barr that recognized the legitimacy of Moore, even when its factors are used more
flexibly, as well as all other cases to the extent that they applied Moore to resolve a claim

13
of harmless error.6

{38} In sum, we no longer recognize the Moore three-part test or any of the factors thereof
as accurate statements of law. To explain our renunciation of Moore, we examine the factors
individually, beginning with the first factor: whether there is “substantial evidence to
support the conviction without reference to the improperly admitted evidence.” Barr, 2009-
NMSC-024, ¶ 56. This factor, through its use of the phrase “substantial evidence,” runs the
risk of allowing the more deferential “sufficiency of the evidence” standard of appellate
review to seep into a court’s harmless error analysis. See, e.g., State v. Aragon, 2010-
NMSC-008, ¶ 36, 147 N.M. 474, 225 P.3d 1280 (focusing on the sufficiency of the evidence
that supports a conviction to conclude an error was harmless); Tom, 2010-NMCA-062, ¶ 19
(relying on the “sufficiency of the evidence” standard when applying the first Moore factor).

{39} Where a defendant appeals from a conviction on the ground that it was not supported
by sufficient evidence, the appellate court must determine “whether, after reviewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have

6
Our review has located the following cases where our appellate courts analyzed
harmless error under the Moore test. Any other opinions that similarly applied the Moore
test are also overruled to the extent they did the same: State v. Wilson, 2011-NMSC-001,
¶¶ 39-42, 149 N.M. 273, 248 P.3d 315; State v. Branch, 2010-NMSC-042, ¶¶ 15-17, 148
N.M. 601, 241 P.3d 602; State v. Aragon, 2010-NMSC-008, ¶¶ 35-36, 147 N.M. 474, 225
P.3d 1280; State v. Marquez, 2009-NMSC- 055, ¶¶ 21-25, 147 N.M. 386, 223 P.3d 931;
State v. Macias, 2009-NMSC-028, ¶¶ 39-44, 146 N.M. 378, 210 P.3d 804; State v.
McClaugherty, 2003-NMSC-006, ¶¶ 32-34, 133 N.M. 459, 64 P.3d 486; State v. Gonzales,
2000-NMSC-028, ¶ 42, 129 N.M. 556, 11 P.3d 131; State v. Duffy, 1998-NMSC-014, ¶¶ 38-
41, 126 N.M. 132, 967 P.2d 807; State v. Ross, 1996-NMSC-031, 122 N.M. 15, 27, 919 P.2d
1080, 1092; State v. Williams, 117 N.M. 551, 559, 874 P.2d 12, 20 (1994); State v. Compton,
104 N.M. 683, 687, 726 P.2d 837, 841 (1986); Sanchez v. State, 103 N.M. 25, 27-28, 702
P.2d 345, 347-48 (1985); State v. Skinner, 2011-NMCA-070, ¶¶ 22-26, 150 N.M. 26, 256
P.3d 969; State v. Tom, 2010-NMCA-062, ¶¶ 17-20, 148 N.M. 348, 236 P.3d 660; State v.
McClennen, 2008-NMCA-130, ¶¶ 13-15, 144 N.M. 878, 192 P.3d 1255; State v. Morales,
2002-NMCA-052, ¶¶ 24-25, 132 N.M. 146, 45 P.3d 406; State v. Barragan, 2001-NMCA-
086, ¶¶ 19-20, 131 N.M. 281, 34 P.3d 1157; State v. Glasgow, 2000-NMCA-076, ¶ 20, 129
N.M. 480, 10 P.3d 159; State v. Gutierrez,1998-NMCA-172, ¶¶ 11, 13-14, 126 N.M. 366,
969 P.2d 970; State v. Elinski, 1997-NMCA-117, ¶¶ 25-27, 124 N.M. 261, 948 P.2d 1209;
State v. Tave, 1996-NMCA-056, ¶¶ 17-18, 122 N.M. 29, 919 P.2d 1094; State v. Aragon,
116 N.M. 291, 295-96, 861 P.2d 972, 976-77 (Ct. App. 1993); State v. Sansom, 112 N.M.
679, 683, 818 P.2d 880, 884 (Ct. App. 1991); State v. Pacheco, 110 N.M. 599, 603, 798 P.2d
200, 204 (Ct. App. 1990); State v. Lara, 109 N.M. 294, 298, 784 P.2d 1037, 1041 (Ct. App.
1989); State v. Roybal, 107 N.M. 309, 312-13, 756 P.2d 1204, 1207-08 (Ct. App. 1988);
State v. Gonzales, 105 N.M. 238, 242, 731 P.2d 381, 385 (Ct. App. 1986); State v. Dobbs,
100 N.M. 60, 68, 665 P.2d 1151, 1159 (Ct. App. 1983).

14
found the essential elements of the crime beyond a reasonable doubt.” Alvarez-Lopez, 2004-
NMSC-030, ¶ 30 (internal quotation marks and citation omitted). In conducting such a
review, the court “indulg[es] all reasonable inferences and resolv[es] all conflicts in the
evidence in favor of the verdict.” State v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140
P.3d 515 (internal quotation marks and citation omitted). By contrast, “[t]he jury verdict
should not automatically be afforded deference when a constitutional error has infected the
trial,” and so in harmless error review the verdict is entitled to deference “only when the
State has established beyond a reasonable doubt that the jury verdict was not tainted by the
constitutional error.” Alvarez-Lopez, 2004-NMSC-030, ¶ 30.

{40} The second Moore factor directs courts to consider whether the prosecution presented
“such a disproportionate volume of permissible evidence that, in comparison, the amount of
improper evidence will appear so minuscule that it could not have contributed to the
conviction.” Barr, 2009-NMSC-024, ¶ 52 (quoting Moore, 94 N.M. at 504, 612 P.2d at
1315). The first two factors are closely linked and invite the same type of potential misuse:
that an error may be deemed harmless simply because of the sheer volume of other evidence
supporting conviction. There are “some circumstances where . . . the evidence of a
defendant’s guilt is sufficient even in the absence of the trial court’s error,” that still require
the reviewing court “to reverse the conviction if the jury’s verdict appears to have been
tainted by error.” Macias, 2009-NMSC-028, ¶ 38; see also State v. Johnson, 2004-NMSC-
029, ¶ 11, 136 N.M. 348, 98 P.3d 998 (“[C]onstitutional error must not be deemed harmless
solely based on overwhelming evidence of the defendant’s guilt.”). There are several
reasons why it is improper for “overwhelming evidence” of a defendant’s guilt to serve as
the main determinant of whether an error was harmless. First, such an approach moves the
inquiry away from its appropriate “central focus,” which is “whether there is a reasonable
possibility” or probability, depending on whether the error offends the defendant’s
constitutional rights, that “the erroneous evidence might have affected the jury’s verdict.”
Id. In addition, excessive reliance on “overwhelming evidence” of guilt also ignores the
principle that “even if conviction appears inevitable, there is a point at which an error
becomes too great to condone as a matter of constitutional integrity and prosecutorial
deterrence.” Alvarez-Lopez, 2004-NMSC-030, ¶ 31 (internal quotation marks and citation
omitted); see also Moore, 94 N.M. at 505, 612 P.2d at 1316 (Sosa, C.J., dissenting)
(“Though evidence of guilt was great in this case, I believe that prosecutors should
nonetheless conform to legal standards in obtaining convictions. . . . Convictions should not
be obtained at any cost, but should be obtained in accordance with the rules of evidence.”).
In addition, when an appellate court gives too much consideration to “overwhelming
evidence,” it risks simply weighing the evidence in favor of and against guilt, which “would
usurp the role of the jury.” State v. Stephen F., 2008-NMSC-037, ¶ 41, 144 N.M. 360, 188
P.3d 84; see also Macias, 2009-NMSC-028, ¶ 38 (“[I]t is not the role of the appellate court
to re-weigh the evidence to decide a defendant’s guilt or innocence.”).

{41} The third Moore factor queries whether there is “substantial conflicting evidence to
discredit the State’s testimony.” Barr, 2009-NMSC-024, ¶ 56. In addition to the same

15
potential for confusion posed by the term “substantial” evidence, discussed above, the third
factor runs the risk of inappropriately shifting the burden of proof from the state to the
defendant. See, e.g., State v. Ross, 122 N.M. 15, 27, 919 P.2d 1080, 1092 (1996) (holding
error to be harmless in part because defendant “failed to offer substantial conflicting
evidence to discredit the State’s testimony” (internal quotation marks and citation omitted));
State v. McClennen, 2008-NMCA-130, ¶ 15, 144 N.M. 878, 192 P.3d 1255 (holding error
to be harmless in part because the defendant did not testify and “[t]hus, there is not
substantial evidence in the record to discredit the State’s evidence”). The burden of proof
in the underlying criminal proceeding will always rest with the State. See UJI 14-5060
NMRA (“The burden is always on the state to prove guilt beyond a reasonable doubt.”); see
also Moeller v. Weber, 689 N.W.2d 1, 16 (S.D. 2004) (the defense “cannot be required to
present any evidence whatever.”). Similarly, once a constitutional error has been established
it is the State’s burden to demonstrate that the error is harmless. See Gutierrez, 2007-
NMSC-033, ¶ 18. Because the third Moore factor appears to reduce that burden, it cannot
be a proper component of our harmless error analysis. 94 N.M. at 504, 612 P.2d at 1315.

{42} Considering the Moore test as a whole, perhaps most significant and most
problematic is what it omits: the central inquiry of whether an error was likely to have
affected the jury’s verdict. By limiting their harmless error review to the weight or volume
of evidence in favor of guilt, courts avoid inquiring into the nature and likely impact of the
very error at issue. See United States v. Coughlin, 821 F. Supp. 2d 8, 2011 WL 5301602 at
*5 (D.D.C. 2011) (“The inquiry is ‘whether the error itself had substantial influence.”
(quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946))). In sum, even if applied
more flexibly as a “useful framework” rather than as a rigid test, Barr, 2009-NMSC-024, ¶
55, the Moore factors misstate the law and distort the proper focus of harmless error review
from “whether the verdict was impacted by the error” to “whether, in spite of the error, the
right result was reached.” Barr, 2009-NMSC-024, ¶ 57.

{43} We now turn to what relevant considerations reviewing courts may use in place of
the Moore factors when assessing the reasonable possibility (or reasonable probability) that
impermissible evidence contributed to a defendant’s conviction. To be sure, there are “no
scientific answers to the ultimate question of whether the trier of fact was influenced by an
error,” as the reviewing court cannot conclusively determine “what went on in the mind of
another or of twelve others.” Roger J. Traynor, The Riddle of Harmless Error 23 (Ohio State
Univ. Press 1970). But in reaching a judgment as to the likely effect of the error, courts
should evaluate all of the circumstances surrounding the error. This requires an examination
of the error itself, which depending upon the facts of the particular case could include an
examination of the source of the error and the emphasis placed upon the error. Of course,
evidence of a defendant’s guilt separate from the error may often be relevant, even
necessary, for a court to consider, since it will provide context for understanding how the
error arose and what role it may have played in the trial proceedings; but such evidence, as
discussed above, can never be the singular focus of the harmless error analysis as it was
under Moore. As we have previously explained, when reviewing an error’s role in the trial,

16
courts may, depending upon the circumstances of the cases before them, examine “the
importance of the [erroneously admitted evidence] in the prosecution’s case,” as well as
“whether the [error] was cumulative” or instead introduced new facts. Johnson, 2004-
NMSC-029, ¶ 11 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). These
considerations, we are careful to note, are not a substitute “test” provided in place of Moore;
for instance, “improperly admitted evidence that is cumulative7 is not ipso facto harmless
beyond a reasonable doubt.” Johnson, 2004-NMSC-029, ¶ 37.

{44} Reviewing courts must keep in mind that harmless error review necessarily requires
a case-by-case analysis. See Sullivan v. Louisiana, 508 U.S.275, 279 (1993) (“The inquiry
. . . [is] whether the guilty verdict actually rendered in this trial was surely unattributable to
the error.”); see also Macias, 2009-NMSC-028, ¶ 37 (“[H]armless error analysis requires an
appellate court to review the effect of an error in the unique context of the specific evidence
presented at a given trial.”). When assessing two cases that are factually analogous, with
similar errors, the reviewing court thus may find the impact of the error harmful in one case
and harmless in the other. In addition, because an error may be prejudicial with respect to
one conviction, but harmless with respect to another, courts must separately assess the effect
the error may have had on each of the defendant’s convictions. See Johnson, 2004-NMSC-
029, ¶ 31.

C. Admission of the Romeros’ Convictions Was Not Harmless

{45} Having clarified how courts are to analyze harmless error, we return to a
consideration of whether the erroneous admission of the Romeros’ convictions at
Defendant’s trial was harmless. As we have discussed, the district court effectively admitted
evidence of the convictions in violation of Defendant’s right of confrontation under the Sixth
Amendment. The error, therefore, was a constitutional error, which is harmless only if we
conclude that there is no reasonable possibility the error contributed to the jury’s decision
to convict Defendant. See Barr, 2009-NMSC-024, ¶ 53; see also Zamarripa, 2009-NMSC-
001, ¶ 52 (“When a statement is admitted in violation of the Confrontation Clause, we next
inquire into whether the error was harmless,” and “[t]o preclude reversal, the error must be
harmless beyond a reasonable doubt.”).

{46} Here, the State fails to meet its burden to show that there was no reasonable
possibility that admission of the Romeros’ convictions affected the jury’s verdict. First, we
note that the State introduced considerable evidence in support of Defendant’s conviction
for first-degree murder, kidnapping, and the conspiracy charges, although most of the
evidence directly linking Defendant to those crimes came from a single witness, Michelle

7
We explained in Johnson that “[c]orroborative evidence tends to corroborate or
to confirm, whereas cumulative evidence merely augments or tends to establish a point
already proved by other evidence.” 2004-NMSC-029, ¶ 39 (internal quotation marks and
citation omitted).

17
Martinez. According to her testimony, Defendant conferred with Ivan Romero about “what
to do” with Victim, and later initiated a similar discussion with Elias Romero, Jaime
Romero, and Martinez herself, after telling the others that he had Victim tied up at Richard
Anaya’s house. During that later discussion at Elias Romero’s house, Defendant warned the
others against letting Victim go free. Defendant traveled with Martinez and Luis Trujillo
to Anaya’s house where Victim was being held, and once there assisted Trujillo and
Lawrence Gallegos in moving Victim after he was injected with heroin. Defendant helped
carry the then-unconscious Victim to his own car, drove to the church parking lot where
Victim’s car would be left, discussed with Gallegos the plan to burn Victim’s car with
Victim inside, and proceeded to enact that plan by using a cherry bomb to set Victim’s car
ablaze.

{47} Martinez’s testimony strongly implicated Defendant in the kidnapping and murder
of Victim, as well as in the conspiracy to commit those acts. Martinez, however, was herself
an active co-conspirator in the crimes committed against Victim, and therefore was subject
to extensive cross-examination on her credibility and motives. In response to defense
counsel’s questioning, Martinez testified that she initially told Detective Wentz that
Defendant had injected Victim with heroin, later changed her story to indicate that Elias
Romero had done so, and only after four interviews with investigators admitted her own
involvement in Victim’s killing. Martinez admitted lying about other material facts,
including the whereabouts of the syringe used to inject Victim with heroin. Defense counsel
further attempted to impeach Martinez’s credibility by asking her if she “cut a deal with the
State” in exchange for her testimony, and by getting Martinez to acknowledge that she faced
a sentence of 108 years for various charges, including the murder of Victim, but as a result
of her plea agreement was sentenced to a maximum of only fifteen years. In addition,
defense counsel elicited testimony from Martinez that she faced additional charges for
unrelated criminal acts, including forgery, larceny and credit card fraud.

{48} In contrast to Martinez, whom defense counsel characterized in his closing argument
as telling “lie, after lie, after lie,” as being a long-time resident of the “drug world,” and as
being driven by a desire to reduce her own sentence by cooperating with the prosecution,
Jaime Romero and Ivan Romero could not be questioned about their credibility or motives
because they did not testify. Martinez’s plea deal, criminal history, and prior false
statements to law enforcement all could have provided the jury with legitimate reasons to
doubt her testimony. See State v. Martinez, 1996-NMCA-109, ¶ 17, 122 N.M. 476, 927
P.2d 31 (“A jury, when judging a witness’s credibility, should be able to take into
consideration whether a witness hoped to curry favor by cooperating with the prosecution.”
(emphasis omitted)). In this light, the Romeros’ convictions provided a potentially important
and unimpeachable piece of evidence that a criminal conspiracy to kill Victim had occurred,
and that such conspiracy included two men who were linked with Defendant through the
testimony of Martinez and several other witnesses.

{49} Although the error here–the district court’s instruction to the jurors that they “must

18
accept as true” the fact that “Jaime and Ivan Romero had been convicted of conspiracy to
commit second-degree murder”–was only uttered once, it cannot be characterized as a stray
remark. Trial testimony associated Ivan Romero with Defendant in myriad ways. He sold
drugs to Victim, a close friend of Defendant; was reported to have disliked Victim;
approached Defendant and Victim in the sports bar parking lot and attacked Victim in the
evening before Victim’s death; and spoke with Defendant about “what to do” with Victim.
In addition, on the night of Victim’s death several phone calls were made between Ivan
Romero’s cell phone and Anaya’s home phone, a fact that the prosecutor referenced in his
closing argument. Ivan Romero also was explicitly identified as having been “involved” in
Victim’s death. Perhaps most vividly, Defendant invoked Ivan Romero as the reason why
Victim was being injected with an apparently lethal dose of heroin when Defendant told
Victim that “he shouldn’t have fucked with Diablo,” a nickname for Ivan Romero.

{50} Much less trial evidence connected Jaime Romero to Defendant, although Martinez
testified that Jaime Romero told Defendant and others that his (Jaime Romero’s) “soldiers”
could “take care of” Victim, and in his closing argument the prosecutor suggested that
Defendant had entered into a conspiracy with Jaime Romero. The fact that the Romeros
were not only charged but convicted of conspiracy to murder Victim strengthened the State’s
case that a conspiracy existed and that Defendant was a part of that conspiracy. See Urioste,
94 N.M. at 768-69, 617 P.2d at 157-58 (quoting the State’s argument that a co-defendant’s
conviction for conspiracy was relevant to prove that a conspiracy existed and that the
defendant was part of the conspiracy).

{51} Here, the Romeros’ convictions were brought to the jury’s attention by the district
court rather than by the prosecutor or witness testimony. No curative instruction could be
given, and the improperly admitted evidence bore the imprimatur of judicial authority. See
generally State v. Caputo, 94 N.M. 190, 192, 608 P.2d 166, 168 (1980) (“[B]ecause of the
judge’s position and the respect and confidence reposed in him (or her) and in his learning
and assumed impartiality, a jury is likely to attach undue weight to any participation by the
judge in the conduct of the trial.”). Although the district court’s instruction to the jury was
somewhat contradictory and reflected its attempt to reach a compromise between the State’s
and Defendant’s positions regarding admission of the convictions, the district court invited
the jury to utilize the convictions to bolster the State’s case if they chose to do so.

{52} In addition, the district court’s statement about the Romeros’ convictions was the last
piece of information that the jury received before formal instructions and closing arguments,
magnifying the risk that the error would factor into the jury’s assessment of Defendant’s
guilt. See generally State v. Sosa, 2009-NMSC-056, ¶ 24, 147 N.M. 351, 223 P.3d 348
(discussing questionable comments made during closing arguments and warning of the
increased potential for prejudice due to the proximity to the end of trial); Caputo, 94 N.M.
at 192, 608 P.2d at 168 (“[T]he information elicited [by the trial court] was the last evidence
of the trial heard by the jury and its significance in all probability was pondered during the
jury’s deliberations.”).

19
{53} Finally, although Jaime Romero and Ivan Romero were convicted only of conspiracy
to commit murder, while Defendant was convicted of the additional crimes of first-degree
murder and kidnapping, there is at least a reasonable possibility that admission of the
Romeros’ convictions affected the verdict in its entirety. The dissent is correct that first-
degree murder and kidnapping are separate offenses from conspiracy–and therefore require
proof of different elements for conviction. The evidence concerning the conspiracy and the
substantive crimes, however, was significantly intertwined. The jury heard testimony about
the altercation between Ivan Romero and Victim that apparently set the entire criminal
venture in motion, Defendant’s statement implying that Victim would die because he had
crossed Ivan Romero, and suggestions that both Ivan Romero and Jaime Romero made to
Defendant about “what to do” with Victim. Any possible ambiguity about what Ivan
Romero or Jaime Romero may have meant when they discussed “what to do” with Victim
would have been dispelled by Martinez’s testimony that Elias Romero then told her “to go
and do it,” which as she elaborated meant to “inject [Victim] and make it look like he
overdosed” in order to kill him. The jury also heard testimony that while Victim was tied
up at Anaya’s house, someone (whom the prosecutor implied, and the jury certainly could
have inferred, was Defendant) placed multiple calls from Anaya’s home phone to Ivan
Romero’s cell phone. According to Martinez, after setting Victim’s car on fire Defendant
went to Ivan Romero’s home and watched smoke rising from the burning car. Defendant’s
main concern, after watching Victim’s car burn, was that he had “disrespected Ivan by taking
[Victim] to the bar in the first place.”

{54} All of the substantive crimes charged against Defendant were based on an accessory
theory of liability. A defendant may be convicted of a crime as an accessory if that
defendant “procures, counsels, aids or abets in its commission and although he did not
directly commit the crime and although the principal who directly committed such crime has
not been prosecuted or convicted.” NMSA 1978, § 30-1-13 (1972); see also State v.
Carrasco, 1997-NMSC-047, ¶ 6, 124 N.M. 64, 946 P.2d 1075 (“A person who aids or abets
in the commission of a crime is equally culpable as the principal.”). Here, the prosecutor
emphasized this point in his closing argument, reminding the jury that “the law says that if
you help, encourage or cause a crime to be committed, you can be just as guilty as the one
who did the crime. Just as guilty. Why? I think it’s obvious. Because if it weren’t for those
acts of encouragement, of help, of assistance some of those crimes wouldn’t even be
committed.” The district court then gave the jury the following instruction regarding
accessory liability:

The defendant may be found guilty of a crime even though he himself
did not do the acts constituting the crime, if the state proves to your
satisfaction beyond a reasonable doubt that:
1. The defendant intended that the crime be committed;
2. The crime was committed;
3. The accused helped, encouraged or caused the crime to be
committed.
20
Regarding conspiracy, the district court instructed the jury that to find Defendant guilty of
the conspiracy crimes, the State must prove beyond a reasonable doubt that “[t]he defendant
and another person by words or acts agreed to commit [the specified crime],” and that “[t]he
defendant and the other person intended to commit [the specified crime].”

{55} Accessory liability and conspiracy “are distinct and separate concepts,” State v. Baca,
1997-NMSC-059, ¶ 46, 124 N.M. 333, 950 P.2d 776 (citation omitted), with the “gist” of
conspiracy being “an agreement between two or more persons to commit a felony.”
Gallegos, 2011-NMSC-027, ¶ 25 (quoting State v. Deaton, 74 N.M. 87, 89, 390 P.2d 966,
967 (1964)). It is apparent, however, that much of Martinez’s trial testimony could be used
to support both the conspiracy and the substantive charges against Defendant. For example,
Martinez’s statement that Ivan Romero and Defendant discussed “what to do” with Victim
could provide evidence both that Defendant “helped” or “encouraged” the kidnapping and
murder of Victim (accessory liability), as well as that Defendant “by words or acts agreed
to commit” and “intended to commit” those crimes (conspiracy liability). The prosecutor
acknowledged this substantial evidentiary overlap during his closing argument, asking the
jury to apply the “same analysis” from the substantive crimes to the parallel conspiracy
charges and even noting that the conspiracy charges involve the “same elements” as their
substantive counterparts. Under these circumstances, it would be unreasonable to simply
assume that the jurors separated the concepts of conspiracy and accessory liability, and
considered the Romeros’ convictions when deliberating on the conspiracy charges but not
when deliberating on the charges of carrying out the object of that same conspiracy.

{56} In the dissent’s view, Defendant’s convictions for first-degree murder and
kidnapping should be affirmed because “direct” evidence in the form of Martinez’s
testimony “convinced the jury of Defendant’s guilt, wholly apart from the misbegotten
evidence of the conspiracy pleas of others.” But the fact that other evidence apart from the
error supports conviction, even if that evidence is overwhelming, cannot be the determinant
of whether the error is harmless. See Johnson, 2004-NMSC-029, ¶ 11 (“[C]onstitutional
error must not be deemed harmless solely based on overwhelming evidence of the
defendant’s guilt.”). Furthermore, the jury here had at least some serious doubts about
Martinez’s credibility, because it acquitted Defendant of the aggravated arson and
conspiracy to commit aggravated arson charges, which like the first-degree murder and
kidnapping charges (and their conspiracy counterparts) were supported almost exclusively
by Martinez’s testimony.

{57} Evaluating harmless error, as our discussion indicates, can be a complex and difficult
process. In the final analysis, determining whether an error was harmless requires reviewing
the error itself and its role in the trial proceedings, and in light of those facts, making an
educated inference about how that error was received by the jury. This process comes down
to a judgment call based on experience and analysis, and as with many human judgments,
reasonable minds may often differ. Our review and consideration of the evidence in this
case persuades us that there is a reasonable possibility that admitting the Romeros’
convictions contributed to Defendant’s convictions. The district court’s error, therefore, was
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not harmless.

III. CONCLUSION

{58} We vacate Defendant’s convictions and remand the case to the district court for
proceedings consistent with this Opinion.

{59} IT IS SO ORDERED.

____________________________________
PATRICIO M. SERNA, Justice

WE CONCUR:

____________________________________
CHARLES W. DANIELS, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

RICHARD C. BOSSON, Justice ( concurring in part and dissenting in part)

BOSSON, Justice (concurring in part and dissenting in part).

{60} I concur in the majority’s analysis of the trial court’s error. The majority’s
revitalized analysis of harmless error is commendable, leading hopefully, to a clearer, more
consistent application of the relevant standards for deciding that important question. It is the
result in this particular case, however, with which I cannot agree. More specifically, I am not
persuaded to reverse Defendant’s convictions for first-degree murder and kidnapping. I do
agree that we must reverse the convictions for conspiracy.

{61} It is relatively easy to conclude that the conspiracy offenses cannot stand. If A is
accused of conspiring with B and C, and the jury hears evidence that the latter two have
already been found guilty of that same conspiracy, well then, the prosecution is more than
half way home without even firing a shot. Common sense and common experience teach
that the state cannot carry its burden on the question of harmless error. No one could
conclude that there is no reasonable possibility of any effect on the jury from such erroneous
evidence with respect to the convictions for conspiracy.

{62} I cannot reach the same conclusion, however, regarding Defendant’s convictions for
first-degree murder and kidnapping. Defendant was convicted of these crimes, either as a
principal or an accessory, based upon direct, eyewitness evidence demonstrating his
22
presence at and active participation in most of the horrifying events of that evening,
including murder and kidnapping. This eyewitness testimony was, I concede, subjected to
forceful cross-examination and impeachment on a variety of grounds. But in my mind that
eyewitness convinced the jury of Defendant’s guilt, wholly apart from the misbegotten
evidence of the conspiracy pleas of others. I cannot join in a conclusion that the jury may
have reached a decision based not upon direct evidence of guilt, but upon evidence that
someone else was guilty of a different, albeit related, crime.

{63} With respect, therefore, I would affirm the convictions for murder and kidnapping
while I join in reversing the convictions for conspiracy.

____________________________________
RICHARD C. BOSSON, Justice

Topic Index for State v. Tollardo, Docket No. 31,241

AE APPEAL AND ERROR
AE-AG Appeal and Error, General
AE-HE Harmless Error
AE-PJ Prejudicial Error

CT CONSTITUTIONAL LAW
CT-CT Confrontation
CT-FT Fair Trial
CT-RF Right to Confrontation

CL CRIMINAL LAW
CL-AC Accessory
CL-CS Conspiracy

CA CRIMINAL PROCEDURE
CA-BP Burden of Proof
CA-FT Fair Trial
CA-GP Guilty Plea
CA-PJ Prejudice
CA-RT Right to Confrontation
CA-SF Standard of Proof

EV EVIDENCE
EV-AE Admissibility of Evidence
EV-CR Credibility of Witness
EV-IM Impeachment

JR JURIES
JR-JG Juries, General
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