State v. Thomas

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 10:38:03 2016.07.25

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMSC-024

Filing Date: June 20, 2016

Docket No. 34,042

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

TRUETT THOMAS,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Samuel L. Winder, District Judge

Bennett J. Baur, Chief Public Defender
Karl Erich Martell, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Hector H. Balderas, Attorney General
M. Victoria Wilson, Assistant Attorney General
Santa Fe, NM

for Appellee

OPINION

DANIELS, Chief Justice.

{1} The Sixth Amendment to the United States Constitution and Article II, Section 14
of the New Mexico Constitution guarantee a criminal defendant the right to confront adverse
witnesses. Defendant Truett Thomas appeals from his convictions of first-degree deliberate
murder and first-degree kidnapping on multiple grounds, including an asserted violation of
the Confrontation Clause through the admission of two-way video testimony of a
prosecution witness. We reverse Defendant’s convictions on this basis but remand for a new
trial on the murder charge only, having concluded that there was insufficient evidence to

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support the kidnapping conviction. Although we need not decide whether social media posts
by the district court judge about the case before him also would have required reversal, we
caution judges to avoid both impropriety and its appearance in their use of social media.

I. BACKGROUND

{2} On June 3, 2010, Guadalupe Ashford’s body was found partially hidden behind a
trash can at the edge of a small parking lot. Drag marks and blood spatter indicated that
Ashford had initially been assaulted in the lot and then dragged a short distance to its edge
where her body was found. The drag marks were contained within the span of one parking
space and extended less than ten feet. Ashford’s body had significant head injuries, including
lacerations, skull fractures, and a dislodged tooth. The medical investigator determined that
Ashford died from blunt force injuries to her head, but he could not identify which of the
several injuries was the cause and could not calculate a specific time of death. Police
testimony indicated that there were no known witnesses to the assault and that no one
reported seeing Defendant in the area.

{3} An Albuquerque Police Department (APD) forensic scientist analyst performed DNA
measurements of samples collected from Ashford’s body and from a six-inch by six-inch
bloodied brick described as “paver stone” and believed to be the murder weapon, generating
DNA profiles of Ashford and of the presumed perpetrator. Unidentified DNA was also
discovered on the paver stone, though in smaller amounts than the DNA evidence matching
either of the full profiles. The forensic analyst entered the presumed perpetrator’s profile into
the CODIS database, which resulted in a match to Defendant. “Authorized by Congress and
supervised by the Federal Bureau of Investigation, the Combined DNA Index System
(CODIS) connects DNA laboratories at the local, state, and national level . . . [and] collects
DNA profiles provided by local laboratories taken from arrestees, convicted offenders, and
forensic evidence found at crime scenes.” Maryland v. King, __ U.S. __, ___, 133 S. Ct.
1958, 1968 (2013). Defendant was arrested and charged on the basis of this DNA evidence,
but he denied ever having met Ashford.

{4} Defendant was held in pretrial custody for twenty-two months before he moved to
dismiss the charges for violation of his right to a speedy trial. The district court denied the
motion and set the trial to begin approximately twenty-six months after Defendant’s arrest.

{5} By the time the case came to trial, the State’s forensic analyst had moved out of New
Mexico. At a hearing two weeks before trial, the prosecutor expressed concerns about
securing the presence of that forensic analyst at trial and suggested that she be allowed to
testify over the live, two-way audio-video communications application Skype as an
alternative. See State v. Schwartz, 2014-NMCA-066, ¶ 5, 327 P.3d 1108 (describing Skype
as “an Internet software application[] that . . . allow[s] users to engage in real time video and
audio communications between two or more locations” (alterations and omission in original)
(internal quotation marks and citation omitted)). When the court asked about defense
counsel’s “thoughts with regard to Skype,” counsel, who had previously interviewed the

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witness through Skype, responded,

I don’t like it, but I think it will work. . . . It’s just weird. She’s really
just going to be there to establish the chain of custody, so she’s not—I mean,
she’s important, obviously, for the State, but she’s not too important. I don’t
really have a problem with Skyping it, as long as there’s no technical issues.

If there’s technical difficulties, then they’re not going to be able to
establish the chain of custody. Then it’s game over.

At another pretrial hearing in the following week, the court asked if there were “any other
matters” that needed to be addressed before trial. In response, defense counsel expressed
hesitation at the use of Skype testimony, stating,

We are going to do the research on this. I don’t think we have enough
research on the Skype issue[,] . . . and we have rethought our position on that,
and we’re thinking it’s going to cause a confrontation problem.

The prosecutor replied that the State had not sought an enforceable subpoena for the witness
in reliance on defense counsel’s statement a week earlier that Skype would “work.” The
district court judge took the position that Defendant had waived any objection to the use of
two-way video by defense counsel’s initial informal acquiescence.

{6} At trial seven days later, the State called the absent forensic analyst to testify via
Skype. During her testimony, a computer image of the forensic analyst faced the jury, but
she was able to see only an image of the attorney questioning her and could not see
Defendant, the jury, or the district court judge at any time. A second APD forensic scientist
analyst did testify in person for the State. She had reviewed and interpreted the
measurements performed by the forensic analyst who testified by Skype but had not
performed any of the DNA measurements herself.

{7} The jury found Defendant guilty of first-degree murder and first-degree kidnapping.
The district court imposed consecutive sentences of life imprisonment for the murder and
eighteen years for the kidnapping. Defendant moved for a new trial based on additional DNA
evidence developed after trial that, according to Defendant’s argument, suggested that one
or more other individuals could have had contact with Ashford or with the murder weapon.

{8} At the hearing on that motion, before a successor district court judge, Defendant also
raised the issue of social media posts made by the original district court judge during the
pendency of the trial. The posts, made on a Facebook page used for the unsuccessful election
campaign of the original district court judge, discussed Defendant’s case. During trial, the
district court judge had posted, “I am on the third day of presiding over my ‘first’ first-
degree murder trial as a judge.” After trial, but before sentencing, the district court judge
posted, “In the trial I presided over, the jury returned guilty verdicts for first-degree murder

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and kidnapping just after lunch. Justice was served. Thank you for your prayers.” The district
court denied the motion for a new trial, and Defendant appealed his convictions directly to
this Court pursuant to the New Mexico Constitution. See art. VI, § 2 (“Appeals from a
judgment of the district court imposing a sentence of death or life imprisonment shall be
taken directly to the supreme court.”).

II. DISCUSSION

A. Defendant’s Right to a Speedy Trial Was Not Violated

{9} We first address Defendant’s argument that his twenty-six months of pretrial custody
violated his constitutional right to a speedy trial. See U.S. Const. amend. VI (guaranteeing
a speedy trial “[i]n all criminal prosecutions”); N.M. Const. art. II, § 14 (same). The Due
Process Clause of the Fourteenth Amendment applies the Sixth Amendment speedy trial
right to state prosecutions. Klopfer v. North Carolina, 386 U.S. 213, 222-23 (1967). Because
Defendant makes no claim that his rights under the New Mexico Constitution should be
interpreted more broadly than those guaranteed by the Fourteenth Amendment of the United
States Constitution, “we base our discussion of this issue on the constitutional requirements
established under federal law.” State v. Coffin, 1999-NMSC-038, ¶ 54 n.2, 128 N.M. 192,
991 P.2d 477.

{10} Pretrial delay may trigger a speedy trial inquiry but is not alone determinative of a
constitutional violation. State v. Samora, 2013-NMSC-038, ¶ 24, 307 P.3d 328. Instead, in
accordance with the federal constitutional guidelines established by the United States
Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972), we must review the individual
circumstances of the case, including the conduct of both prosecution and defense, and the
actual harm that a defendant may have suffered as a result of pretrial delay. State v. Garza,
2009-NMSC-038, ¶ 13, 146 N.M. 499, 212 P.3d 387. Factors in this analysis are (1) the
length of the delay, (2) the reasons for the delay, (3) the defendant’s assertion of his right,
and (4) the actual prejudice to the defendant incurred from the delay. Barker, 407 U.S. at
530. “Each of these factors is weighed either in favor of or against the State or the defendant,
and then balanced to determine if a defendant’s right to a speedy trial was violated.” State
v. Spearman, 2012-NMSC-023, ¶ 17, 283 P.3d 272. While we give deference to the factual
findings of a trial court in performing this analysis, we review the application of the factors
de novo. Id ¶ 19.

{11} The district court found that this was a complex case due to the required DNA
analysis and the average time required to process a homicide case in the jurisdiction, and the
parties do not dispute that finding. Because a “trial court [is] familiar with the factual
circumstances, the contested issues and available evidence, the local judicial machinery, and
reasonable expectations for the discharge of law enforcement and prosecutorial
responsibilities,” we defer to the district court’s finding on the question of complexity when
that “finding[] . . . [is] supported by substantial evidence.” State v. Manzanares,
1996-NMSC-028, ¶ 9, 121 N.M. 798, 918 P.2d 714.

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{12} The delay in this case was sufficient to trigger a speedy trial inquiry, see Garza,
2009-NMSC-038, ¶¶ 47-48 (stating that a delay of over eighteen months is sufficient to
trigger an inquiry in a complex case), but it was not sufficiently beyond the guideline that
may trigger further inquiry that it would weigh heavily against continuation of the
prosecution. See id. ¶¶ 23-24 (stating that “the greater the delay the more heavily it will
potentially weigh against the State,” and concluding that a ten-month delay in a simple case
“scarcely crosse[d] the bare minimum [of nine months] needed to trigger judicial
examination” and was not so extraordinary that it would weigh heavily (internal quotation
marks and citation omitted)); State v. Montoya, 2011-NMCA-074, ¶ 17, 150 N.M. 415, 259
P.3d 820 (stating that a delay of six months beyond the presumptive period weighed only
slightly against the State). Much of the delay here was administrative, due to a vacancy on
the bench and due to the unavailability to the defense of the forensic analyst for pretrial
interviews. Although this type of delay is characterized as negligent and weighs against the
State, it does not weigh heavily where, as here, there is no evidence of bad-faith intent to
cause delay. Garza, 2009-NMSC-038, ¶¶ 25-26.

{13} Defendant asserted his right to a speedy trial when his counsel filed an entry of
appearance one month after his arrest and then again twenty-one months later in a motion
to dismiss. We assess the timing and manner of Defendant’s assertions and give weight to
the frequency and force of his objections. Id. ¶ 32. Defendant here initially asserted his
speedy trial right in a pro forma manner but made no focused assertion until almost two
years had passed. This history weighs only slightly in his favor. See id. ¶ 34 (weighing a
speedy trial demand slightly in favor of a defendant who asserted the right once, and not
vigorously, before filing a motion to dismiss); State v. Urban, 2004-NMSC-007, ¶ 16, 135
N.M. 279, 87 P.3d 1061 (stating that pro forma pretrial motions filed upon counsel’s entry
of appearance are generally afforded relatively little weight in the analysis of a claimed
violation of the right to a speedy trial).

{14} Concerning the fourth Barker factor, “generally a defendant must show particularized
prejudice of the kind against which the speedy trial right is intended to protect.” Garza,
2009-NMSC-038, ¶ 39. The first three Barker factors all weigh slightly in Defendant’s favor,
but “only where the length of delay and the reasons for the delay weigh heavily in [a]
defendant’s favor and [the] defendant has asserted his right and not acquiesced to the delay
[does] the defendant need not show [particularized] prejudice in order to prevail on a speedy
trial claim.” Samora, 2013-NMSC-038, ¶ 27 (fourth alteration in original) (internal quotation
marks and citation omitted). In analyzing prejudice, we consider a defendant’s interests in
(1) preventing oppressive pretrial incarceration, (2) minimizing anxiety and concern, and (3)
limiting the possibility that the defense will be impaired. Garza, 2009-NMSC-038, ¶ 35.
“The burden of showing all types of prejudice lies with the individual claiming the
violation[,] and the mere ‘possibility of prejudice is not sufficient to support [the] position
that . . . speedy trial rights [are] violated.’” Id. (second and third alterations and omission in
original) (quoting United States v. Loud Hawk, 474 U.S. 302, 315 (1986)).

{15} Defendant argued in the district court that pretrial incarceration had caused him to

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suffer from depression and to lose his ability to work and survive on the streets, had
diminished his social skills so that he might not be able to assist in his own defense, and
might cause witness memories to fade before trial. Because the effects of pretrial
incarceration are experienced by every jailed defendant awaiting trial, we weigh this factor
in the defendant’s favor only where the pretrial incarceration or the anxiety suffered is
“undue.” Id. ¶ 35; see Black’s Law Dictionary 1759 (10th ed. 2014) (“undue” is “[e]xcessive
or unwarranted”).

{16} On appeal, Defendant makes no argument as to why his anxiety was beyond that
generally suffered by incarcerated defendants, nor does he point to any evidence indicating
that he was unable to assist in his own defense in any way, that any witnesses were unable
to remember any information needed for his defense, or that he was impaired in his defense
in any other demonstrable manner as a result of the time that elapsed before he was brought
to trial. “[W]ithout a particularized showing of prejudice, we will not speculate as to the
impact of pretrial incarceration on a defendant or the degree of anxiety a defendant suffers.”
Garza, 2009-NMSC-038, ¶ 35. Because the other factors do not weigh heavily in his favor,
and because Defendant has failed to demonstrate any particularized prejudice, we conclude
that Defendant’s speedy trial claim does not call for reversal of his convictions.

B. The Skype Testimony Violated the Confrontation Clause

{17} The Confrontation Clause of the Sixth Amendment to the United States Constitution,
like its counterpart in the New Mexico Constitution, provides, “In all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the witnesses against him.” See
U.S. Const. amend. VI; N.M. Const. art. II, § 14. Under this Court’s interstitial mode of
constitutional analysis, we first consider whether the United States Constitution provides
Defendant relief before determining whether it is necessary to address a counterpart
protection under the New Mexico Constitution. See State v. Lopez, 2013-NMSC-047, ¶ 8,
314 P.3d 236 (noting that where an asserted right is protected by the United States
Constitution, there is no need to reach the counterpart State constitutional claim).
“[Q]uestions of admissibility under the Confrontation Clause are questions of law, which we
review de novo.” State v. Montoya, 2014-NMSC-032, ¶ 16, 333 P.3d 935 (internal quotation
marks and citation omitted).

1. Defendant did not knowingly and voluntarily waive his right to object to
violation of his right to confrontation

{18} As an initial matter, the State argues that Defendant waived his right to raise the issue
of violation of his confrontation rights. A fundamental right, even a constitutional right, may
be waived. State v. Padilla, 2002-NMSC-016, ¶ 12, 132 N.M. 247, 46 P.3d 1247. “Waiver
is the intentional relinquishment or abandonment of a known right or privilege.” State v.
Zamarripa, 2009-NMSC-001, ¶ 38, 145 N.M. 402, 199 P.3d 846 (internal quotation marks
and citation omitted). But “[t]here is a presumption against the waiver of constitutional
rights.” Id. To be valid, waivers “must be voluntary[,] . . . knowing, [and] intelligent acts

6
done with sufficient awareness of the relevant circumstances and likely consequences.”
Padilla, 2002-NMSC-016, ¶ 18 (internal quotation marks and citation omitted). This Court
reviews de novo whether a waiver was knowing and voluntary, considering the facts and
circumstances of the case. Id.

{19} The district court judge apparently accepted that Defendant had waived his right to
object to violation of his confrontation rights when defense counsel initially acquiesced to
the admission of two-way video testimony, seemingly based on counsel’s stated belief that
the witness would only establish the chain of custody for the DNA evidence. A week later
and just one week before trial, defense counsel had more thoroughly considered the issue and
asserted that the video testimony would violate Defendant’s right to confrontation. The
district court judge refused a continuance and advised defense counsel to “note [his]
objections on confrontation grounds.” Later, the district court judge stated that he believed
the right to object had been waived, but at no time did either the district court or defense
counsel discuss any permanent waiver of confrontation rights with Defendant directly.

{20} “The duty to protect fundamental rights ‘imposes the serious and weighty
responsibility upon the trial judge of determining whether there is an intelligent and
competent waiver by the accused.’” Id. ¶ 19 (quoting Johnson v. Zerbst, 304 U.S. 458, 465
(1938)). Although no particular form is required, it is the court’s obligation to make sure that
a waiver is valid and predicated upon a meaningful decision by the defendant. Padilla, 2002-
NMSC-016, ¶ 19. “[T]here must be a sufficient colloquy to satisfy the trial court’s
responsibilities; a knowing and voluntary waiver cannot be inferred from a silent record.”
Id. With no discussion in the record between the district court and Defendant concerning his
confrontation rights, there is no evidence that Defendant understood those rights or that he
voluntarily agreed to waive them, and we must conclude that no intentional waiver occurred.

{21} The State also argues that defense counsel should be deemed to have permanently
waived his client’s confrontation rights because counsel’s “prior waiver of [the out-of-state
witness’s] physical presence at trial caused her unavailability.” But the State points to
nothing in the record indicating that the one-week period between defense counsel’s initial
acquiescence and his reconsideration and objection had anything to do with the State’s
failure to invoke the complex and time-consuming procedures in the courts of two states
required by the Uniform Act to Secure the Attendance of Witnesses from Without a State
in Criminal Proceedings, NMSA 1978, §§ 31-8-1 to -6 (1937, as amended through 1953)
(Uniform Act). The State apparently never initiated any procedures under the Uniform Act,
either before defense counsel’s initial acquiescence to the Skype testimony or after counsel’s
reversal of that position one week later. The State has made no showing that it could have
secured the in-person attendance of the witness had counsel objected instantly when the
State first raised the unavailability problem just two weeks before trial, and the State did not
argue how the one-week period made a difference in its ability to do so. We therefore find
no factual support for the State’s waiver by estoppel theory.

2. Defendant’s objection to the violation of his confrontation rights was preserved

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 because the district court was alerted to the error

{22} Even in the absence of a formal waiver of rights, our law still requires that a
defendant preserve a question for appellate review by fairly invoking a ruling or decision by
a trial court. Rule 12-216(A) NMRA. “A party must assert its objection and the basis thereof
with ‘sufficient specificity to alert the mind of the trial court to the claimed error.’”
Zamarripa, 2009-NMSC-001, ¶ 33 (citation omitted). We therefore address the State’s
argument that defense counsel failed to preserve the confrontation issue by not making a
specific objection to the Skype testimony during trial.

{23} The record reflects that the district court was alerted to the confrontation issue in the
hearing a week before the trial began when defense counsel specifically advised the court
on the record that he had been rethinking the Skype testimony issue raised the previous week
and stated, “[W]e’re thinking it’s going to cause a confrontation problem.” The court clearly
addressed the issue when it responded to the confrontation claim by ruling that defense
counsel had waived his client’s right to object and telling counsel, “You can note your
objections on confrontation grounds.” The issue was therefore sufficiently brought to the
attention of the court and preserved for appellate review, whether or not counsel articulated
a repeated objection during the trial. See Samora, 2013-NMSC-038, ¶ 14 (“[W]e review an
issue for reversible error only when the defendant has properly raised the issue in the district
court. . . . ‘Unless the trial court’s attention is called in some manner to the fact that it is
committing error, and given an opportunity to correct it, cases will not be reversed because
of errors which could and would have been corrected in the trial court, if they had been
called to its attention.’” (citation omitted)); State v. Mason, 1968-NMCA-072, ¶ 12, 79 N.M.
663, 448 P.2d 175 (holding that a defendant need not renew an objection at trial when the
issue is fully preserved prior to trial).

3. The presentation of Skype testimony violated Defendant’s confrontation rights

{24} The central purpose of the Confrontation Clause, to ensure the reliability of evidence,
is served by “[t]he combined effect of . . . physical presence, oath, cross-examination, and
observation of demeanor by the trier of fact.” Maryland v. Craig, 497 U.S. 836, 846 (1990).
In Craig, the United States Supreme Court considered whether the Confrontation Clause
allows a child victim of abuse to testify at trial over one-way closed circuit television while
physically located in a room separate from the judge, the jury, and the defendant who
nevertheless hear and see the testimony. Id. at 840-41, 850 (holding that “the face-to-face
confrontation requirement is not absolute . . . , [but neither is it] easily . . . dispensed with.
. . . [A] defendant’s right to confront accusatory witnesses may be satisfied absent a physical,
face-to-face confrontation at trial only where denial of such confrontation is necessary to
further an important public policy and only where the reliability of the testimony is
otherwise assured”). Craig emphasized that the video testimony was given under oath, was
subject to cross-examination, and allowed the fact-finder to observe the demeanor of the
witness. Id. at 851. In declining to hold that the child’s testimony was given as an out-of-
court statement, the Court noted that the “assurances of reliability and adversariness [were]

8
far greater than those required for admission of hearsay testimony under the Confrontation
Clause.” Id.

{25} Then, in Crawford v. Washington, 541 U.S. 36, 61-65 (2004), the United States
Supreme Court abandoned its previous reliability-focused approach and “adopted a
fundamentally new interpretation of the confrontation right, holding that [t]estimonial
statements of witnesses absent from trial [can be] admitted only where the declarant is
unavailable, and only where the defendant has had a prior opportunity to cross-examine,”
without regard to the reliability of particular substitutes for confrontation. Williams v.
Illinois, ___U.S.___, ___, 132 S. Ct. 2221, 2232 (2012) (alterations in original) (internal
quotation marks and citation omitted). Crawford reaffirmed that “the Clause’s ultimate goal
is to ensure reliability of evidence” but relied on the history of the common-law right to
confrontation to interpret the Confrontation Clause as “a procedural rather than a substantive
guarantee [that] commands, not that evidence be reliable, but that reliability be assessed in
a particular manner: by testing in the crucible of cross-examination.” 541 U.S. at 61.

{26} Crawford may call into question the prior holding in Craig to the extent that Craig
relied on the reliability of the video testimony. But the face-to-face aspect of confrontation
was not at issue in Crawford, and Crawford did not overrule Craig. See United States v.
Yates, 438 F.3d 1307, 1314 n.4 (11th Cir. 2006) (stating that Craig remains the proper test
for the admissibility of live two-way video testimony under the Confrontation Clause and
declining to apply Crawford); People v. Gonzales, 281 P.3d 834, 863 (Cal. 2012) (rejecting
the argument that Craig was no longer good law after Crawford); State v. Jackson, 717
S.E.2d 35, 39-40 (N.C. Ct. App. 2011) (acknowledging that part of Craig’s rationale seems
inconsistent with Crawford but explaining that they address distinct confrontation questions
and agreeing with the weight of authority that Crawford did not overrule Craig); State v.
Henriod, 2006 UT 11, ¶ 16, 131 P.3d 232 (reasoning that Crawford did not implicitly
overrule Craig because Crawford did not mention video transmission of testimony given
during trial, which had previously been a subject of debate among the Justices and so was
unlikely to have been inadvertently overlooked). We conclude that Craig remains controlling
law when a witness does testify at trial but the defendant is nevertheless denied physical
face-to-face confrontation.

{27} Under Craig, the necessity of the substitute procedure to further an important state
interest is the critical inquiry. See 497 U.S. at 852. A trial court must hear evidence and make
a case-specific determination of necessity as it pertains to the particular witness. See id. at
855. Craig dealt with one-way video transmission, and we have not previously applied it to
a live two-way video connection. See State v. Fairweather, 1993-NMSC-065, ¶¶ 25-26, 34,
116 N.M. 456, 863 P.2d 1077 (holding, pre-Crawford, that the admission of deposition
testimony videotaped out of the presence of the defendant, who sat at a remote monitor to
see and hear the testimony live, was consistent with Craig after the trial court made
individualized findings of necessity in furtherance of public policy). The United States
Supreme Court has never adopted a specific standard for two-way video testimony, but we
doubt it would find any virtual testimony an adequate substitute for face-to-face

9
confrontation without at least the showing of necessity that Craig requires. The United States
Supreme Court rejected a proposed amendment to Rule 26(b) of the Federal Rules of
Criminal Procedure that would have allowed unavailable witnesses to testify via two-way
video. See Order of the Supreme Court, 207 F.R.D. 89 (2002). In a filing related to the
rejection, Justice Antonin Scalia wrote,

I cannot comprehend how one-way transmission . . . becomes transformed
into full-fledged confrontation when reciprocal transmission is added. As we
made clear in Craig, [497 U.S.] at 846-47, a purpose of the Confrontation
Clause is ordinarily to compel accusers to make their accusations in the
defendant’s presence—which is not equivalent to making them in a room that
contains a television set beaming electrons that portray the defendant’s
image. Virtual confrontation might be sufficient to protect virtual
constitutional rights; I doubt whether it is sufficient to protect real ones.

Id. at 94; see also Nancy Gertner, Videoconferencing: Learning Through Screens, 12 Wm.
& Mary Bill Rts. J. 769, 786 (2004) (providing perspectives of an experienced federal trial
judge and cautioning that “in live testimony, face-to-face transmission plainly increases the
information available to the fact-finder”).

{28} Our Court of Appeals has consistently applied Craig when analyzing the
admissibility of live two-way video testimony under the Confrontation Clause. See Schwartz,
2014-NMCA-066, ¶¶ 6, 14 (determining error under the Confrontation Clause in the
admission of two-way video testimony where findings of necessity in the service of public
policy were insufficient); State v. Smith, 2013-NMCA-081, ¶¶ 8, 12, 308 P.3d 135 (same);
State v. Chung, 2012-NMCA-049, ¶¶ 11-12, 290 P.3d 269 (same). The vast majority of
courts from other jurisdictions, both federal and state, are in accord. See, e.g., United States
v. Abu Ali, 528 F.3d 210, 240-41 (4th Cir. 2008) (applying Craig to an analysis of the
admissibility of two-way video testimony under the Confrontation Clause); Yates, 438 F.3d
at 1313-16 (applying Craig to test the admissibility at trial of two-way video and listing
cases from the Sixth, Eighth, Ninth, and Tenth Circuits that have done the same); State v.
Rogerson, 855 N.W.2d 495, 503-04 (Iowa 2014) (acknowledging that live two-way video
testimony is different than the one-way connection addressed in Craig but relying on cases
from numerous state and federal jurisdictions to conclude that Craig is still applicable); State
v. Stock, 2011 MT 131, ¶¶ 25, 30, 361 Mont. 1, 256 P.3d 899 (applying Craig to determine
the admissibility of two-way video testimony after holding that Crawford did not overrule
Craig). But see United States v. Gigante, 166 F.3d 75, 81 (2d Cir. 1999) (declining to adopt
Craig’s requirement of necessity for two-way video testimony but nevertheless requiring a
finding of exceptional circumstances where the use of two-way video testimony will further
the interests of justice).

{29} We adopt the Craig standard here in our analysis of the admissibility of two-way
video testimony. A criminal defendant may not be denied a physical, face-to-face
confrontation with a witness who testifies at trial unless the court has made a factual finding

10
of necessity to further an important public policy and has ensured the presence of other
confrontation elements concerning the witness testimony including administration of the
oath, the opportunity for cross-examination, and the allowance for observation of witness
demeanor by the trier of fact.

{30} Nothing in the record of this case demonstrates that the use of two-way video was
necessary to further an important public policy as required by Craig. The district court did
not conduct an evidentiary hearing or enter any findings on the issue. Because the required
findings were not made, we hold that the admission of remote testimony violated
Defendant’s right to confrontation. Inconvenience to the witness is not sufficient reason to
dispense with this constitutional right. Schwartz, 2014-NMCA-066, ¶ 7.

{31} The State does not argue that the Craig standard was met but instead asserts that
there was no confrontation violation because the forensic analyst was unavailable to present
live testimony and Defendant was able to cross-examine her through the audiovisual Skype
connection. See Crawford, 541 U.S. at 53-54 (allowing testimonial statements to be admitted
under the Confrontation Clause when the witness is unavailable and the defendant has had
a prior opportunity to cross-examine). Assuming for the sake of argument that Crawford can
be applied to analyze the admissibility of testimony given at trial over live video as if the
statements were made out of court, the requirements of unavailability and cross-examination
must still be met.

{32} An out-of-state witness is not generally considered unavailable for the purpose of the
admission of out-of-court statements unless the proponent of that witness’s testimony has
complied with the Uniform Act. See State v. Martinez, 1984-NMCA-106, ¶¶ 10-11, 102
N.M. 94, 691 P.2d 887 (holding, pre-Crawford, that although “[o]ur prior cases have insisted
on strict compliance with the Uniform Act before an out-of-state witness may be declared
unavailable,” a prosecutor’s untimely and unsuccessful use of the Uniform Act was
excusable when the witness had responded to three prior subpoenas and the state reasonably
expected him to respond to a fourth in the same manner). After Crawford, the State must still
comply with the Uniform Act, and it failed to do so in this case despite knowing weeks in
advance of trial that the witness might not willingly attend. Accordingly, we conclude that
the State has failed to establish the legal unavailability of the witness, and we need not
determine whether cross-examination over Skype is sufficient to fulfill Crawford’s
requirements. Under current United States Supreme Court Confrontation Clause
jurisprudence, Defendant’s Sixth Amendment right to confrontation was violated by the
admission of the video testimony.

4. The violation of Defendant’s confrontation rights was not harmless error

{33} “Improperly admitted evidence is not grounds for a new trial unless the error is
determined to be harmful.” State v. Tollardo, 2012-NMSC-008, ¶ 25, 275 P.3d 110. When
an error is constitutional, it is harmless only if the challenger can prove there is no
reasonable possibility that the error affected the verdict. Id. ¶ 36. We must reverse a

11
conviction if the erroneously admitted evidence might have contributed to it. Id. ¶ 40.

{34} The State argues that the admission of this two-way video testimony was harmless
error because another forensic analyst was present in court and properly testified to her
preparation of a report comparing the DNA profiles developed by the absent forensic
analyst. But the existence of other evidence to support the verdict does not cure a
constitutional error when there is a reasonable possibility that the erroneously admitted
evidence influenced the jury’s verdict. See id. ¶¶ 40, 43 (stating that the existence of other
evidence to support a conviction may be considered to understand the role that erroneously
admitted evidence played in the trial but may not be the “focus of the harmless error
analysis”). “The Court’s focus is not whether, in a trial that occurred without the error, a
guilty verdict would surely have been rendered, but whether the guilty verdict actually
rendered in this trial was surely unattributable to the error.” State v. Ortega, 2014-NMSC-
017, ¶ 20, 327 P.3d 1076 (internal quotation marks and citation omitted). The expert witness
who testified via Skype was the only APD forensic scientist analyst who had actually
performed measurements on the DNA samples in this case. Her involvement in the case was
significant, and she testified to the results of the measurements she performed. The DNA
profiles were offered as the sole evidence that implicated Defendant in this crime. We
conclude that there is no reasonable possibility the testimony of the absent forensic analyst
did not influence the verdict and accordingly that the error was not harmless.

{35} Although an error may be prejudicial with respect to one conviction and harmless
with respect to another, Tollardo, 2012-NMSC-008, ¶ 44, we need not separately assess the
effect of the error on each conviction in this case because the erroneously admitted DNA
evidence was all that implicated Defendant in any crime. We reverse both of Defendant’s
convictions.

C. Retrial Is Allowed Only If Sufficient Evidence Supported Defendant’s
Convictions

{36} Although the violation of Defendant’s right to confrontation requires us to reverse
his convictions, we still must address the sufficiency of the evidence to determine whether
retrial would be barred on double jeopardy grounds. State v. Cabezuela, 2011-NMSC-041,
¶ 47, 150 N.M. 654, 265 P.3d 705. On remand, Defendant is entitled to an acquittal on a
charge if the evidence presented at trial was insufficient to support his conviction. State v.
Consaul, 2014-NMSC-030, ¶ 41, 332 P.3d 850.

{37} In determining the sufficiency of the evidence, we review the evidence “in the light
most favorable to the State, resolving all conflicts and making all permissible inferences in
favor of the jury’s verdict.” Id. ¶ 42 (internal quotation marks and citation omitted). Viewed
in this manner, substantial evidence must exist that would allow a rational trier of fact to find
that each element of the crime has been established beyond a reasonable doubt. Id.

1. Sufficient evidence supports Defendant’s first-degree deliberate intent murder

12
 conviction

{38} To prove first-degree deliberate murder, the State was required to prove that
Defendant killed Ashford with the deliberate intention to take away her life. See NMSA
1978, § 30-2-1(A)(1) (1994) (“Murder in the first degree is the killing of one human being
by another . . . by any kind of willful, deliberate and premeditated killing.”); UJI 14-201
NMRA (“The word deliberate means arrived at or determined upon as a result of careful
thought and the weighing of the consideration for and against the proposed course of action”
and requires a “calculated judgment” to kill, although it “may be arrived at in a short period
of time.”). Defendant argues that the jury verdict was inherently speculative because the
DNA evidence did not adequately prove that Defendant was the killer and because some
hallmarks of deliberate intent, such as motive or careful planning, were missing.

{39} There was sufficient evidence to allow a trier of fact to reasonably infer that it was
Defendant who killed Ashford. Physical evidence containing a full DNA profile matching
Defendant was found on Ashford’s body in semen on her thigh and under the fingernails of
her right hand, and also on the paver stone presumed to be the murder weapon. The jury was
informed that unidentified DNA was also present and was alerted in closing arguments to
consider the possibility that another person or other people could have been involved.

{40} Additionally, the State presented substantial evidence at trial to raise a reasonable
inference of deliberate intent. This Court previously concluded there was sufficient evidence
for a rational jury to infer deliberate intent under factual circumstances similar to those here
based on evidence of a prolonged struggle and the large number of the victim’s wounds. See
State v. Duran, 2006-NMSC-035, ¶¶ 9, 11, 140 N.M. 94, 140 P.3d 515; see also State v.
Flores, 2010-NMSC-002, ¶ 22, 147 N.M. 542, 226 P.3d 641 (concluding that there was
sufficient evidence of deliberate intent where the defendant stabbed the victim with a
screwdriver “so many times that it evidenced an effort at overkill”).

{41} Defendant concedes that a large number of wounds, such as those sustained by
Ashford, can indicate deliberation. The fact that the number of wounds could instead indicate
impulsivity, as Defendant argues, does not mean that the jury was required to interpret them
that way or, when combined with the evidence of dragging the incapacitated Ashford
followed by further assault, that deliberation and impulsivity are equally possible so as to
have required the jury to speculate. See State v. Vigil, 2010-NMSC-003, ¶ 20, 147 N.M. 537,
226 P.3d 636 (reversing a conviction because the “chain of inferences” supporting the
verdict amounted to no more than “guess or conjecture” and stating that the jury may not
speculate to reach the conclusions necessary to the verdict). There was sufficient evidence
for a rational trier of fact to conclude that Defendant was the killer and that the killing was
deliberate.

2. There was insufficient evidence to support Defendant’s kidnapping conviction

{42} To support a kidnapping conviction under New Mexico law, the State must prove an

13
“unlawful taking, restraining, transporting or confining of a person, by force, intimidation
or deception, with intent . . . to inflict death, physical injury or a sexual offense.” NMSA
1978, § 30-4-1(A)(4) (2003); see also UJI 14-403 NMRA. The State based its case for
kidnapping on evidence showing that Ashford was initially assaulted in the small parking
lot, then dragged to the edge of the lot behind a trash can where she was struck again at least
once and where she was later found. Blood was found in two places within the parking lot,
and there were drag marks showing her body had been moved. The State also relied on this
evidence to support the charge of deliberate murder and informed the jury in closing
arguments that it should consider the evidence in establishing both charges.

{43} New Mexico’s kidnapping statute is broadly worded and often encompasses conduct
that occurs during the commission of another crime. See State v. Trujillo, 2012-NMCA-112,
¶¶ 23-29, 289 P.3d 238 (discussing the history of kidnapping statutes and the types of
conduct intended for punishment). We give effect to the plain meaning of a statute only
when that will “not render the statute’s application absurd, unreasonable, or unjust.” State
v. Rowell, 1995-NMSC-079, ¶ 8, 121 N.M. 111, 908 P.2d 1379 (internal quotation marks
and citation omitted). “[V]irtually every assault, sexual assault, robbery, and murder involves
a slight degree of confinement or movement.” Trujillo, 2012-NMCA-112, ¶ 23 (internal
quotation marks and citation omitted). To allow a kidnapping conviction to be based upon
this incidental conduct can give rise to serious injustice by increasing punishment so as to
render it disproportionate to culpability. See id. ¶ 24. The Legislature did not intend to
punish as kidnapping conduct that is “merely incidental to another crime.” Id. ¶ 39. Where
no evidence establishes a kidnapping separate from that of acts predictably involved in
another crime, the conviction cannot be sustained. See id. ¶¶ 39, 41.

{44} Any restraint here occurred during the commission of one continuous attack that
ended in murder. This is in contrast to our cases upholding convictions for both kidnapping
and murder, where separate evidence proved each crime. See, e.g., State v. Saiz, 2008-
NMSC-048, ¶ 33, 144 N.M. 663, 191 P.3d 521 (upholding convictions for both murder and
kidnapping where the initial motive to restrain the victim was to commit a sexual assault,
and the murder took place after the assault), overruled on other grounds by State v.
Belanger, 2009-NMSC-025, ¶ 36 & n.1, 146 N.M. 357, 210 P.3d 783; State v. Jacobs, 2000-
NMSC-026, ¶¶ 24-25, 129 N.M. 448, 10 P.3d 127 (upholding convictions for both murder
and kidnapping where the evidence showed either a kidnapping by deception prior to the
murder, based on the defendant’s false pretenses causing the teenage victim to associate with
him, or a kidnapping by separate restraint for the purpose of sexual assault or during the
victim’s hundred-yard walk to her death). The evidence here indicates that the events all
took place along one side of a small parking lot. The drag marks appear to extend less than
ten feet, within the span of one parking space. The State asserts that this act of moving
Ashford was distinct from her murder but fails to describe any separate restraint that would
result in a kidnapping prior to the murder. The movement across a short distance within one
small isolated parking lot did not constitute a separate crime from the murder that was
already in progress. We conclude that on remand, Defendant may not be retried for
kidnapping because insufficient evidence supported his kidnapping conviction.

14
D. Judges Must Adhere to the Code of Judicial Conduct and Avoid Any
Appearance of Impropriety When Using Electronic Social Media

{45} Defendant argues that social media postings by the district court judge demonstrate
judicial bias. During the pendency of the trial, the district court judge posted to his election
campaign Facebook page discussions of his role in the case and his opinion of its outcome.
Although we need not decide this issue because we reverse on confrontation grounds, we
take this opportunity to discuss our concerns over the use of social media by members of our
judiciary.

{46} “An independent, fair, and impartial judiciary is indispensable to our system of
justice.” Rule 21-001(A) NMRA. Accordingly, judges must adhere to the Code of Judicial
Conduct, Rules 21-100 to -406 NMRA, at all times. A judge “should expect to be the subject
of public scrutiny that might be viewed as burdensome if applied to other citizens.” Rule 21-
102 n.2. Judges must avoid not only actual impropriety but also its appearance, and judges
must “act at all times in a manner that promotes public confidence in the independence,
integrity, and impartiality of the judiciary.” Rule 21-102.

{47} These limitations apply with equal force to virtual actions and online comments and
must be kept in mind if and when a judge decides to participate in electronic social media.
See Rule 21-001(B) (“Judges and judicial candidates are also encouraged to pay extra
attention to issues surrounding emerging technology, including those regarding social media,
and are urged to exercise extreme caution in its use so as not to violate the Code.”); New
Mexico Supreme Court Advisory Committee on the Code of Judicial Conduct, Advisory
Opinion Concerning Social Media, ¶ 4 (Feb. 15, 2016) (“[T]he Code . . . addresses conduct
pertaining to social media use in the context of its broader rules. . . . Simply put, a judge may
not communicate on a social media site in a manner that the judge could not otherwise
communicate.”).

{48} Social media use has led to numerous allegations of misconduct by participants in
our legal system. See, e.g., United States v. Bowen, 969 F. Supp. 2d 546, 625-27 (E.D. La.
2013) (granting the defendants’ motion for a new trial on the basis of prosecutorial
misconduct in posting online comments under anonymous pseudonyms that portrayed the
defendants in a negative light and created “an online ‘carnival atmosphere’ . . . wherein
justice was distorted and perverted in ways that are directly and strictly prohibited”); Chace
v. Loisel, 170 So. 3d 802, 804 (Fla. Dist. Ct. App. 2014) (quashing an order denying a
motion to disqualify a trial judge because the party’s failure to respond to the judge’s
Facebook “friend” request created a reasonable fear of offending the judge and not receiving
a fair and impartial trial); State v. Smith, 418 S.W.3d 38, 42, 48-49 (Tenn. 2013) (requiring
an evidentiary hearing to determine whether a new trial was necessary on the basis of juror
misconduct after a juror sent Facebook messages to one of the State’s witnesses during trial).

{49} While we make no bright-line ban prohibiting judicial use of social media, we
caution that “friending,” online postings, and other activity can easily be misconstrued and

15
create an appearance of impropriety. Online comments are public comments, and a
connection via an online social network is a visible relationship, regardless of the strength
of the personal connection. See Domville v. State, 103 So. 3d 184, 185-86 (Fla. Dist. Ct.
App. 2012) (quashing an order denying disqualification of a trial judge based on a Facebook
friendship with the prosecutor because the public social networking relationship was
sufficient to create in a reasonably prudent person a well-founded fear of not receiving a fair
and impartial trial); but see Youkers v. State, 400 S.W.3d 200, 204-07, 213 (Tex. App. 2013)
(affirming the denial of a motion for a new trial based on a Facebook friend connection
between the trial judge and the victim’s father because no evidence showed that the
relationship would influence the judge and lead to bias or impartiality in the case and
because the judge had placed all actual Facebook communications in the record and
cautioned the father not to communicate with him further regarding the case).

{50} We recognize the utility of an online presence in judicial election campaigns, but we
agree with the American Bar Association in recommending that these campaign sites be
established and maintained by campaign committees, not by the judicial candidate
personally. See ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. 462
(2013) (discussing Judge’s Use of Electronic Social Networking Media). We clarify that a
judge who is a candidate should post no personal messages on the pages of these campaign
sites other than a statement regarding qualifications, should allow no posting of public
comments, and should engage in no dialogue, especially regarding any pending matters that
could either be interpreted as ex parte communications or give the appearance of
impropriety.

{51} Judges should make use of privacy settings to protect their online presence but should
also consider any statement posted online to be a public statement and take care to limit such
actions accordingly. See State v. Madden, No. M2012-02473-CCA-R3-CD, 2014 WL
931031, *8 (nonprecedential) (Tenn. Crim. App. March 11, 2014, appeal denied September
18, 2014) (“[J]udges will perhaps best be served by ignoring any false sense of security
created by so-called ‘privacy settings’ and understanding that, in today’s world, posting
information to Facebook is the very definition of making it public.”). A judge’s online
“friendships,” just like a judge’s real-life friendships, must be treated with a great deal of
care. The use of electronic social media also may present some unfamiliar concerns, such
as the inability to retrieve or truly delete any message once posted, the public perception that
“friendships” exist between people who are not actually acquainted, and the ease with which
communications may be reproduced and widely disseminated to those other than their
intended recipients. See United States v. Fumo, 655 F.3d 288, 305-06 (3d Cir. 2011)
(affirming the denial of a motion for a new trial because there was no evidence of substantial
prejudice to the defendant resulting from a juror’s Facebook and Twitter comments during
trial that were followed and rebroadcast by the media without the juror’s knowledge). A
judge must understand the requirements of the Code of Judicial Conduct and how the Code
may be implicated in the technological characteristics of social media in order to participate
responsibly in social networking. Members of the judiciary must at all times remain
conscious of their ethical obligations.

16
III. CONCLUSION

{52} Because Defendant’s confrontation rights were violated, his convictions must be
reversed. The evidence was sufficient to support a conviction of first-degree murder but
insufficient to support a conviction of first-degree kidnapping. We therefore remand to the
district court for entry of a judgment of acquittal on the kidnapping charge and retrial on the
charge of first-degree murder.

{53} IT IS SO ORDERED.

____________________________________
CHARLES W. DANIELS, Chief Justice

WE CONCUR:

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
BARBARA J. VIGIL, Justice

JUDITH K. NAKAMURA, Justice, not participating

17