State v. Hernandez

Certiorari Denied, No. 31,805, July 29, 2009

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-096

Filing Date: June 16, 2009

Docket No. 28,265

STATE OF NEW MEXICO,

Plaintiff-Appellant,

v.

ROBERTO HERNANDEZ,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
J. Michael Kavanaugh, District Judge

Gary K. King, Attorney General
Andrea Sassa, Assistant Attorney General
Santa Fe, NM

for Appellant

Hugh W. Dangler, Chief Public Defender
Karl Erich Martell, Assistant Appellate Defender
Santa Fe, NM

for Appellee

OPINION

SUTIN, Judge.

{1} The State appeals from the district court’s order of suppression pursuant to NMSA
1978, Section 39-3-3(B)(2) (1972), which authorizes state appeals from suppression rulings.
At issue is the admissibility of out-of-court statements allegedly made by Defendant Roberto
Hernandez, which were heard by Officer J. Saavedra, as well as statements made by Officer
Saavedra to others. We address (1) whether the court erred in excluding the statements as
the tainted product of a Miranda violation, and (2) whether the statements were otherwise

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properly excluded because their admission would violate Defendant’s right to confrontation.
We reverse and remand for further proceedings.

BACKGROUND

{2} Threatening phone calls were made to a residence, and gunshots were fired at the
residence multiple times, following which the threatening phone calls would resume.
Apparently soon after one of these calls, the police came to the residence, and moments after
their arrival, the phone rang. Several occupants of the home recognized the identified phone
number as that of Defendant. Officer Saavedra answered the phone and engaged in a brief
conversation with the caller. The officer asked “Who’s this?” and the caller hung up.
Approximately half a minute later, the phone rang again and the officer again answered it.
During the course of the conversation, and prior to Officer Saavedra identifying himself as
a police officer, the caller apparently made inculpatory remarks, including identifying
himself as “Roberto” and the shooter. Edgar Luna was standing near Officer Saavedra and
heard some of the caller’s statements. Officer Saavedra, contemporaneous to the caller’s
remarks, made statements to the occupants of the house that purported to relay portions of
the telephone conversation. The State asserts that Defendant was the caller, which
Defendant denies. At the time of the court proceedings below, Officer Saavedra was
deployed to Iraq and unavailable to testify.

{3} The district court held a pretrial motions in limine hearing and considered the
admissibility of (1) the caller’s statements to Officer Saavedra, including those that were
apparently overheard by Luna, and (2) Officer Saavedra’s statements to the occupants of the
house that were made contemporaneous to his conversation with the caller. At the hearing,
the court ruled that all of the statements were inadmissible because the caller was not
advised of his rights as provided in Miranda v. Arizona, 384 U.S. 436, 479 (1966). Specific
to Officer Saavedra’s statements, the court additionally acknowledged that the Miranda
ruling was “interconnected” to an analysis of Defendant’s right to confrontation under
Crawford v. Washington, 541 U.S. 36, 53-54 (2004). The court’s resultant written order
excludes all of the statements at issue as products of Miranda violations. We review the
court’s suppression order pursuant to a de novo standard of review. See State v. Cassola,
2001-NMCA-072, ¶ 2, 130 N.M. 791, 32 P.3d 800 (reviewing the facts under a substantial
evidence standard and reviewing the district court's application of the law to those facts de
novo).

DISCUSSION

The Court Erred in Excluding the Statements Based on Miranda Violations

{4} Case law provides that a Miranda warning is required when the suspect is
interrogated and in custody. State v. Cooper, 1997-NMSC-058, ¶¶ 33-40, 124 N.M. 277,
949 P.2d 660. In the present case, specifically relating to the custody requirement, the
court’s order sets forth its finding that the caller “at the time of that phone conversation . .
. was not in police custody and was free at any time to get off of the phone.”

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{5} We agree with the court’s finding, given that the caller voluntarily initiated the phone
calls, could have and did terminate the phone calls on his own initiative, and was not in any
way restricted in his freedom of movement. See generally State v. Wilson, 2007-NMCA-
111, ¶ 23, 142 N.M. 737, 169 P.3d 1184 (explaining that, in assessing whether an individual
was in custody for Miranda purposes, “the court must apply an objective test to resolve the
ultimate inquiry: was there a formal arrest or restraint of freedom of movement of the degree
associated with a formal arrest” (internal quotation marks and citation omitted)), cert.
denied, 2007-NMCERT-008, 142 N.M. 435, 166 P.3d 1089. We consider also that the caller
was not questioned about his location during the telephone conversation and that the caller
was not told he was speaking to an officer until near the end of the conversation. See State
v. Griffin, 116 N.M. 689, 698, 866 P.2d 1156, 1165 (1993) (citing with approval the holding
that “Miranda warnings [are] not required when suspect is unaware he is speaking to law
enforcement officer and gives a voluntary statement”). In short, because the caller was not
in custody, we hold that the court erred in ruling that the statements were inadmissible based
on Miranda violations. See State v. Snell, 2007-NMCA-113, ¶ 10, 142 N.M. 452, 166 P.3d
1106 (recognizing that Miranda warnings are only necessary when a person is in custody at
the time of interrogation), cert. denied by N.M. v. Snell, 129 S. Ct. 626 (2008).

Remand Is Necessary Because the Record Is Not
Sufficiently Developed to Assess Whether Admission of the
Statements at Issue Would Violate Defendant’s Right to Confrontation

{6} In apparent anticipation that we would reverse the court’s Miranda ruling, Defendant
urges this Court to nonetheless affirm on a “right for any reason” analysis. See generally
State v. Gallegos, 2007-NMSC-007, ¶ 26, 141 N.M. 185, 152 P.3d 828 (stating that an
appellate court will affirm a district court’s decision if it is right for any reason, as long as
it is not unfair to the appellant). In this context, Defendant argues that the order suppressing
evidence is affirmable because admission of the statements at issue would violate his Sixth
Amendment right to confrontation. See Crawford, 541 U.S. at 53-57 (providing that
testimonial hearsay must be excluded when the declarant is unavailable and there has been
no prior opportunity for cross-examination by the defendant, regardless of whether such
statements are deemed reliable by the court); State v. Ortega, 2008-NMCA-001, ¶¶ 14-33,
143 N.M. 261, 175 P.3d 929 (filed 2007) (applying Crawford in a confrontation-clause
analysis). We in turn address the statements allegedly made by Defendant, which were
heard by Officer Saavedra, and those statements made by the officer to others during the
telephone conversations.

Defendant’s Statements

{7} The State broadly and generally asserts that the statements made by the caller are
admissible as those made by Defendant as a party opponent. In the abstract, we agree that
party admissions do not present confrontation concerns because Crawford applies to
testimonial hearsay evidence and because Rule 11-801(D)(2)(a) NMRA provides that
admissions by party opponents are not hearsay. See State v. Henderson, 2006-NMCA-059,

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¶ 13, 139 N.M. 595, 136 P.3d 1005; State v. Castillo-Sanchez, 1999-NMCA-085, ¶¶ 22-23,
127 N.M. 540, 984 P.2d 787 (applying Rule 11-801(D)(2)(a) and rejecting the defendant’s
argument that his own statement could violate his right to confront witnesses against him).
As a practical matter, however, consideration needs to be given to the vehicle by which the
State intends to admit the alleged party admissions. Because Defendant contests admission
of the statements and denies being the caller making such statements, presumably he is not
the vehicle by which the State would admit the alleged party admissions. This leaves three
potential remaining vehicles: Officer Saavedra, Luna, and Officer Saavedra’s police report.

{8} As for Officer Saavedra, while the caller’s statements perhaps could be admitted
through the officer’s testimony given that he ostensibly heard such statements, due to Officer
Saavedra’s unavailability this was not an option. His absence problematically deprived
Defendant of the safeguard of cross-examining Officer Saavedra. Without this safeguard,
it would be patently unfair for the State to simply assert that tendered party admissions were
made to Officer Saavedra without providing Defendant the opportunity to cross-examine the
officer to test his reliability as the vehicle for admission—for example, questioning Officer
Saavedra’s credibility, the accuracy of what he allegedly heard, and the circumstances under
which the alleged statements were made. See generally Mathis v. State, 112 N.M. 744, 748,
819 P.2d 1302, 1306 (1991) (recognizing that the “right of cross-examination is a part of the
constitutional right to be confronted with the witnesses against one” (internal quotation
marks and citation omitted)). We disagree with the State’s assertion that it can simply allege
that party admissions were made to Officer Saavedra and admit those alleged statements
without making Officer Saavedra available for cross-examination.

{9} Without Officer Saavedra as a witness, another potential vehicle by which to admit
the alleged party admissions is through the testimony of Luna who apparently overheard the
caller make some or all of the statements in question. Unlike Officer Saavedra, presumably
Luna is available to testify and thus would be subject to the safeguard of cross-examination.
However, as noted, Defendant denies being the caller. In such instance, a remand is
necessary for the district court to consider whether the State can make a threshold showing
of authentication that Defendant was the caller. See Rule 11-104(A) NMRA (providing that
preliminary questions concerning the admissibility of evidence shall be determined by the
court); State v. Garcia, 110 N.M. 419, 425, 796 P.2d 1115, 1121 (Ct. App. 1990) (holding
that the identity of the caller is a preliminary question under Rule 11-104(A), (B)). To meet
this threshold level of admissibility, the State must present authentication or identification
evidence “sufficient to support a finding that the matter in question is what its proponent
claims.” Rule 11-901(A) NMRA; State v. Wesson, 83 N.M. 480, 482, 493 P.2d 965, 967 (Ct.
App. 1972) (holding that testimony concerning a telephone conversation that the witness had
with the defendant was admissible where the witness testified unequivocally that he
recognized the defendant’s voice over the telephone). In the event the State makes a
threshold showing of authentication, then ultimately the issue of the caller’s identity will be
a matter for the jury to decide. See State v. Martinez, 2007-NMSC-025, ¶¶ 19-20, 141 N.M.
713, 160 P.3d 894 (stating that “[w]hen using Rule 11-104(A) to determine whether
evidence is admissible, the trial court need only be satisfied by a preponderance of the
evidence that the foundational requirement has been met” and stating that under Rule 11-

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104(B), the jury is charged with determining authentication and personal knowledge of the
witness).

{10} Defendant asserts that the State failed to “adequately preserve any facts regarding . . .
Luna’s purported testimony” and thus suggests that it would be inappropriate or unfair to
remand to allow the State such an opportunity. We disagree. A more accurate
characterization of what happened before the district court is that the State was not provided
an opportunity to present Luna as a vehicle for admission, despite its request. In this regard,
a review of the hearing transcript indicates that the court acknowledged that Luna’s
testimony “would have to undergo . . . its own foundational requirement for admission” and,
in response, the prosecutor stated, “if [the court] want[s] to get into that now or wait until
[Luna] comes up to testify . . . [.]” The statement to the court was interrupted at that point
by defense counsel. Relevant to this, the prosecutor indicated that Luna would be able to
“positively identify . . . Defendant’s voice” and that Defendant’s number was reflected on
the caller identification device.

{11} Despite the prosecutor’s efforts, however, ultimately the court did not provide the
prosecutor with an opportunity to present evidence authenticating Defendant as the caller.
Instead, the district court agreed with defense counsel’s arguments that the State could not
rely on Luna’s testimony to “circumvent” the Miranda violations and that “if Miranda
applie[d] to the statements made to the police, this also applie[d] to the statements that are
tainted and were heard by other civilians.” We lastly note that, in response to the district
court’s view of Miranda, the prosecutor requested a break to “look at the case law and talk
to the other officers who were there.” And while the court afforded the prosecutor “five
minutes” to do so, the break was given to allow the prosecutor to research Miranda, and
not—as suggested by Defendant—to “secure [the State’s] witness[],” referring specifically
to Luna. Accordingly, we conclude that it is appropriate on remand for the State to again
attempt to admit Defendant’s alleged statements through Luna’s testimony, assuming that
the State can satisfy the authentication foundational requirements as noted earlier in this
opinion.

{12} Finally, the third potential vehicle by which to admit Defendant’s alleged party
admissions is through Officer Saavedra’s police report, which may refer to some of the
statements made by the caller. Although recognized as a potential vehicle below, it is not
clear whether the State intends to move to admit the police report. Moreover, because the
court relied on Miranda to exclude all statements, the court never specifically considered
how the report fares under a Crawford analysis. For this reason, we remand with
instructions that, if on remand the State tenders the police report, the court should consider
whether the report constitutes testimonial evidence under a Crawford analysis. See
generally State v. Morales, 2002-NMCA-016, ¶ 18, 131 N.M. 530, 39 P.3d 747 (providing
that it is for the district court in the first instance to make the required findings).

Officer Saavedra’s Statements

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{13} We next consider whether the statements that Officer Saavedra made to the occupants
of the home, while improperly excluded under a Miranda analysis, nonetheless would have
been properly excluded to protect Defendant’s confrontation rights. As noted earlier, while
speaking to the caller, Officer Saavedra contemporaneously related to others in the house
that the caller was “Roberto,” and the officer also indicated that he was speaking to the
“shooter of the residence.” The State presumably plans to introduce the officer’s statements
through the testimony of the occupants who heard the officer make such statements.
Because Officer Saavedra is unavailable and there has been no prior opportunity for
Defendant to cross-examine Officer Saavedra about such statements, Crawford provides that
the officer’s statements, if testimonial, must be excluded. 541 U.S. at 53-54.

{14} In addressing whether Officer Saavedra’s statements are testimonial, the parties’
briefs present differing viewpoints. Defendant maintains that the statements are testimonial
because the officer made them to the occupants of the house, which included another officer,
in anticipation of using them in a future criminal proceeding. See generally State v. Romero,
2006-NMCA-045, ¶ 46, 139 N.M. 386, 133 P.3d 842 (recognizing that statements given
under circumstances when the declarant objectively might anticipate their use in a later
criminal prosecution are testimonial in nature), aff’d, 2007-NMSC-013, 141 N.M. 403, 156
P.3d 694; see also State v. Dedman, 2004-NMSC-037, ¶ 29, 136 N.M. 561, 102 P.3d 628
(recognizing that a core concern underlying confrontation-clause protection is the
“involvement of government officers in the production of testimony with an eye toward trial,
because this provides a unique potential for prosecutorial abuse” (alteration omitted)
(internal quotation marks and citation omitted)). Conversely, the State maintains that Officer
Saavedra made his statements to the occupants not with the goal of perpetuating trial
testimony, but instead to secure the scene and while he was under the immediate stress of
an ongoing emergency. See generally Ortega, 2008-NMCA-001, ¶¶ 28-29 (referring to
Davis v. Washington, 547 U.S. 813, 821-22 (2006), and holding that statements are non-
testimonial when made in the course of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to enable police assistance to meet
an ongoing emergency).

{15} Both parties’ respective positions merit further consideration, but we are unable to
do so in the absence of an appropriate record to address a Crawford analysis. See Romero,
2006-NMCA-045, ¶ 66 (providing that whether a statement is an excited utterance or
present-sense impression, and thus non-testimonial for purposes of a Crawford analysis,
requires a fact-specific inquiry). The district court did briefly reference Crawford and
conclude that Officer Saavedra’s statements were testimonial, however, it did so in the
context of its ruling that the officer’s statements were the tainted result of Miranda
violations. Because the court’s ruling was premised on Miranda, the appropriate facts and
arguments specific to a Crawford analysis are absent from the record. We are unwilling to
speculate as to the specific arguments and relevant facts that the parties would have
developed below had they not been cut off from doing so based on the court’s Miranda
ruling. Cf. State v. Vargas, 2008-NMSC-019, ¶ 8, 143 N.M. 692, 181 P.3d 684 (holding that
under the right-for-any-reason doctrine, “we may affirm the district court’s order on grounds
not relied upon by the district court if those grounds do not require us to look beyond the

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factual allegations that were raised and considered below” (internal quotation marks and
citation omitted)). We accordingly remand with instructions that the district court consider
the admissibility of Officer Saavedra’s statements in the context of a Crawford analysis.

CONCLUSION

{16} We reverse the district court’s ruling that the statements at issue were obtained in
violation of Miranda. Specific to the statements that the State alleges were made by
Defendant, we remand for consideration of whether such statements can be authenticated and
admitted through Luna’s testimony. As for Defendant’s statements that are set forth in the
police report, we remand for consideration of the report’s admissibility in the context of a
Crawford analysis. Specific to the statements the State alleges were made by Officer
Saavedra, we also remand for consideration of these statements in the context of a Crawford
analysis.

{17} IT IS SO ORDERED.

____________________________________
JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
TIMOTHY L. GARCIA, Judge

Topic Index for State v. Hernandez, No. 28,265

AE APPEAL AND ERROR
AE-RM Remand

CT CONSTITUTIONAL LAW
CT-CT Confrontation
CT-SU Suppression of Evidence

CA CRIMINAL PROCEDURE
CA-ML Motion in Limine
CA-MR Motion to Suppress
CA-MW Miranda Warnings

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