(concurring in part, dissenting in part).
{37} I concur in the majority’s holding that Mother’s Sixth Amendment right to confrontation was violated when, despite the fact that Mother had no opportunity to cross-examine her co-defendants, the trial court admitted her co-defendants’ out of court statements made during police interrogations. Additionally, although I believe the trial court’s failure to sever the trials of the defendants makes this an extremely close case as to whether the jury may have convicted Mother for illegitimate reasons, I join the majority in upholding Mother’s conviction for negligently permitting child abuse not resulting in death or great bodily harm. Even if the statements from her co-defendants are not considered, Mother’s own out-of-court statements, which were introduced to the jury, support the conclusion that the error in admitting the statements in violation of Mother’s right of confrontation was harmless beyond a reasonable doubt. Mother’s statements included an admission that on more than one occasion she observed both Father and Uncle toss the baby in the air, striking her head on the ceiling. She admitted having become angry with them for having done so and asking them to stop. These admissions, together with the medical evidence of abuse occurring days before the child’s death, support a conclusion that the admission of the Father’s and Uncle’s statement was harmless error beyond a reasonable doubt.
{38} However, I am not persuaded that the statements from Mother’s co-defendants relating to the events of the night of the child’s death did not contribute to Mother’s conviction for negligently permitting child abuse resulting in death or great bodily harm. As such, I respectfully dissent and would remand to the trial court for a new trial on the count relating to child abuse resulting in death or great bodily harm.
{39} Given the varying and somewhat confusing statements from the co-defendants, a jury might have drawn the reasonable inference that Mother was aware of the abuse on the night of the baby’s death. For example, at one point, Father, in a statement denying any wrongdoing, said that he spent the night with Mother, the baby, and Uncle. When Father finally confessed to what he had done, he recounted that he threw the baby up in the air, striking her head on the ceiling, as did Uncle. When asked what Mother said when the baby was thrown up against the ceiling he replied “I don’t even know, I don’t even remember if she was awake or not.” Several minutes later, when he acknowledged that he continued throwing the baby in the air, he was asked, “And where’s your wife this whole time?” His reply, “She was there, too.” He later claimed Mother passed out and was asleep at the time of the abuse.
{40} Uncle stated that on the night of the baby’s death he was in the bedroom playing video games with Father and Mother. Although Mother consistently stated that she was asleep, not knowing the baby was being abused by Father and Uncle, the statements of the co-defendants are equivocal on this subject. Had Mother been afforded the opportunity to cross-examine her co-defendants, she may have been able to clarify whether everyone was in agreement that she was asleep and unaware of any abuse of the baby during the night preceding the child’s death. Whether a jury would have convicted Mother based on uncontroverted evidence that she was asleep and unaware of the abuse taking place is not the issue. The issue is whether there is a reasonable possibility that the statements admitted in violation of the Sixth Amendment might have contributed to Mother’s conviction.
{41} The majority has interpreted the statements of Father and Uncle as “largely silent with regard to [Mother’s] actions or knowledge during the last two days of [the baby’s] life,” and as not making “any reference to [Mother’s] awareness of [their] activities.” Maj. Op. ¶ 26. While this is certainly a reasonable interpretation of their statements, the jury also heard Father, at one point, say he did not know whether Mother was asleep, and, at another point, state that she was there while he was tossing the child against the ceiling. The Court of Appeals in describing Father’s statement wrote, “Father’s statement not only corroborates Mother’s, [Father] specifically adds that he and Uncle made Baby hit the ceiling and dropped her onto the floor while they were throwing her and that Mother knew it.” State v. Walters, 2006-NMCA-071, ¶ 41, 139 N.M. 705, 137 P.3d 645. The State contends that this description by the Court of Appeals is misleading because the implication that “mother knew” father was throwing the baby at the time he was doing so, is false. Indeed, argues the State, Father’s statement was an attempt to establish an alibi for Mother, seemingly conceding the exculpatory value of Mother not being aware of Father’s actions because she was asleep or passed out. By contrast, an interpretation of Father’s statement, without the benefit of cross-examination, which leads to a finding that Mother was aware of the abuse taking place, is inculpatory evidence.
{42} Although I might interpret the statement more in line with the State’s interpretation, the equivocal nature of the statement is for the jury to interpret and weigh. A reasonable jury may have accepted the portion of Father’s statement where he said he did not know whether Mother was awake and that Mother was there while he tossed the baby in the air, and have rejected any statement that she was passed out or asleep. Certainly such a reasonable inference or interpretation of the statement would contribute to a guilty verdict.
{43} The focus of harmless error analysis is “whether there is a reasonable possibility the erroneous evidence might have affected the jury’s verdict.” State v. Johnson, 2004-NMSC-029, ¶ 11, 136 N.M. 348, 98 P.3d 998. We must be able to determine, beyond a reasonable doubt, that the jury verdict would have been the same had the constitutional error not occurred. Id. ¶ 9.
[A] reviewing court [must] be guided not by its own assessment of the guilt or innocence of the defendant — a matter which is irrelevant to the question whether the constitutional error might have contributed to the jury’s verdict — but rather by 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. In my judgment, the statements of the co-defendants allow a reasonable inference that Mother was aware of the abuse the night of the child’s death. Therefore, I conclude that there is a reasonable possibility that the evidence complained of might have contributed to Mother’s conviction.
{44} The prosecution vigorously resisted severance in this case. I conclude my analysis of this issue by reiterating what we wrote in State v. Gutierrez:
The zeal ... of some prosecuting attorneys, tempts them to an insistence upon the admission of incompetent evidence, or getting before the jury some extraneous fact supposed to be helpful in securing a verdict of guilty.... When the error is exposed on appeal, it is met by the stereotyped argument that it is not apparent it in any wise influenced the minds of the jury. The reply the law makes to such suggestion is: that, after injecting it into the case to influence the jury, the prosecutor ought not to be heard to say, after he has secured a conviction, it was harmless---[T]he presumption is to be indulged, in favor of the liberty of the citizen, that whatever the prosecutor, against the protest of the defendant, has laid before the jury, helped to make up the weight of the prosecution which resulted in the verdict of guilty.
2007-NMSC-033, ¶24, 142 N.M. 1, 162 P.3d 156 (2007) (quoting State v. Frank, 92 N.M. 456, 460, 589 P.2d 1047, 1051 (1979)).
{45} I would reverse Mother’s conviction for negligent child abuse resulting in death or great bodily harm and grant her a new trial. The majority concluding otherwise, I respectfully dissent.
I CONCUR: RICHARD C. BOSSON, Justice.