June 16, 2009 – State of New Mexico v. Roberto Hernandez, No. 28,265

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: June 16, 2009

NO. 28,265

STATE OF NEW MEXICO,
Plaintiff-A ppellant,

Vv.

ROBERTO HERNANDEZ,
Defendant-A ppellee.

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

Gary K. King, Attomey General

Andrea Sassa, Assistant Attomey General

Santa Fe, NM

for Appellant

Hugh W. Dangler, Chief Public Defender

Karl Erich Martell, Assistant Appellate Defender

Santa Fe, NM

for Appellee

CORRECTION PAGE: Page 1, line 6. Changed “David” to “Roberto”. S-G-Bu, No. 28265, filed June 16, 2009.
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 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

2
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

3
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.”
{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”

4
(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

5
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, ¶ 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

6
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

7
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

8
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 11-104(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 . . . [.]”

9
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

10
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
{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

11
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.

12
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 factual allegations

13
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

14