stating that to 17 establish ineffective assistance of counsel a defendant must point to “specific lapses” 18 by trial counsel and demonstrate that “there is a reasonable probability that, but for 19 counsel’s unprofessional errors, the result of the proceeding would have been 23 1 different” (internal quotation marks and citation omitted)
How later courts described this case
- stating that to 17 establish ineffective assistance of counsel a defendant must point to “specific lapses” 18 by trial counsel and demonstrate that “there is a reasonable probability that, but for 19 counsel’s unprofessional errors, the result of the proceeding would have been 23 1 different” (internal quotation marks and citation omitted)
- holding that this Court has jurisdiction over a direct appeal from a serious youthful offender who received less than a life sentence because to require the “rare case of a serious youthful offender convicted of first-degree murder” to appeal first to the Court of Appeals would create “confusion and inconsistency” in our case law
- concluding that while serious youthful offenders convicted of first-degree murder may receive less than a life sentence, they nonetheless “shall be allowed to invoke this Court’s mandatory appellate jurisdiction under Article VI, Section 2 of the New Mexico Constitution”
- holding that because the Court found “substantial evidence 16 in the record to support Defendant’s convictions, and because Defendant failed to 17 demonstrate circumstances that ‘shock the conscience’ or show a fundamental 18 unfairness,” no fundamental error existed
Written by the judges who cited it.
The opinion
MINZNER, Justice (concurring in part, dissenting in part).
{69} I would remand this case for a new trial. The majority holding otherwise, I respectfully dissent.
{70} I agree that Defendant properly invoked this Court’s mandatory appellate jurisdiction, that he failed to preserve a Confrontation Clause claim, that he was improperly convicted of conspiracy to commit depraved mind murder, and that he was improperly convicted of multiple counts of conspiracy to commit shooting at a dwelling or occupied building. Thus, I concur in parts II, 111(A), V, and VI.
{71} Defendant’s claims of prosecutorial misconduct and cruel and unusual punishment arising from his sentence could arise on remand, so I agree these questions ought to be reached; additionally, I agree with the majority’s disposition on the merits. I also agree that there was sufficient evidence to support the conviction of conspiracy to commit aggravated battery. Because we consider improperly admitted evidence when evaluating the sufficiency of the evidence on appeal, State v. Post, 109 N.M. 177, 181 , 783 P.2d 487, 491 (Ct.App.1989), I agree that there is sufficient evidence supporting the conviction of depraved mind murder as a principal or as an accessory. I therefore also concur in parts IV, VIII, IX and XI.
{72} I would, however, remand for a new trial because I believe for the following reasons that the admission of the tape and transcript of Joseph Ortiz’s interview with the police was reversible error. I therefore respeetfully dissent from part III(B). The majority admits Ortiz’s out of court statements under Rule 11-803CX) NMRA 2002. I disagree for three reasons.
{73} First, I am not persuaded that the requirements for admission under Rule 11-803(X) were satisfied. Further, despite a brief reference to that rule, the trial court may not have admitted the statement on that basis. Finally, I do not think that the use of Rule 11-803(X) in this context comports with its drafters’ intentions. Because none of the other rules upon which the State relied appear to be applicable, I would reverse the convictions of depraved mind murder, aggravated assault, and conspiracy to commit aggravated battery, and remand for a new trial on these counts. In view of my disposition of part III(B), I would not reach the ineffective assistance of counsel and cumulative error claims found in parts VII and X.
{74} Rule 11-803(X) provides:
A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, [is not included in the hearsay rule] if the court determines that:
(1) the statement is offered as evidence of a material fact;
(2) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
(3) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known, to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.
This rule expressly requires that the proffered statement have “equivalent circumstantial guarantees of trustworthiness.” I believe that Ortiz had a motive to lie and therefore his statement lacked circumstantial guarantees and was inherently untrustworthy. I conclude that Rule 11-803(X) does not provide a basis for admitting the statement.
{75} It is true that Ortiz’s statement did implicate his own cousin, and one could reason that Ortiz would not implicate a family member with a statement unless he believed it to be true. Ortiz, however, did have a motive to shift the blame for the fatal shot from his cousin to Defendant, assuming — as I think we can — that Ortiz was aware that eyewitnesses put both his cousin and Defendant on the balcony, and assuming familial loyalty to his cousin. Although accessory liability might make Defendant legally culpable whether or not he fired the fatal shots, I think it is fair to say that most people would view a shooter who missed his target less culpable than one who slays his target. The fact that Ortiz most likely would view his cousin as being less culpable had he not fired the fatal shots significantly diminishes any circumstantial guarantee of trustworthiness based on the notion that people do not implicate family members unless believing it to be true. Cf. State v. Torres, 1998-NMSC-952 , ¶ 18, 126 N.M. 477 , 971 P.2d 1267 (agreeing that, in the analogous context of statements against penal interest, the subjective beliefs of the declarant about legal culpability are relevant to determining the admissibility of the hearsay).
{76} The majority also reasons that because Ortiz put himself and his family in danger by giving a description of the shooters to the police, it is less likely that he lied. Any danger inherent in a true identification of a gang member, however, would also seem to argue against the candor of such a statement, especially to the police. Faced with the possibility of gang retaliation, Ortiz might have felt pressure to give an incomplete or inaccurate description of the events.
{77} In fact, the State introduced evidence of Ortiz’s and Defendant’s gang membership to explain why Ortiz may have lied at trial and to provide a motive for the quarrel. I agree that Ortiz’s fear of retaliation shows that he has valid reasons for “being less than candid about his cousin’s and Defendant’s involvement in the shooting at trial.” Majority Opinion, ¶58. His fear could have had the same effect on his statement to the police. In this vein, Ortiz’s “ranking out” of the Barelas gang certainly provided a plausible explanation for the start of the quarrel. It also provides a plausible explanation for a less than candid statement to the police about that quarrel.
{78} Both familial loyalty and fear of retaliation could lead to an inference that Ortiz would not have made the statement to the police unless he believed it to be true. On the other hand, both facts also argue that the statement he gave was less than candid. Evidence that supports two contradictory inferences is properly said to have proved neither. State v. Garcia, 114 N.M. 269, 275 , 837 P.2d 862, 868 (1992). Familial loyalty and fear of retaliation would seem to argue more forcefully against a truthful statement; at the very least they do not provide circumstantial guarantees of trustworthiness. Because Rule 11-803(X) requires an affirmative showing of such guarantees, I do not believe that it provides a basis for admitting this statement.
{79} I also note that the detective who took Ortiz’s statement felt that Ortiz was lying to him. On cross-examination, Detective Shawn testified that at the time of the interview he felt that Ortiz knew who the shooters were but was concealing their identity. He also testified that he was unaware at the time of the interview that Ortiz and Allison were cousins. Detective Shawn’s frustration that Ortiz was hiding the identity of the shooters is understandable. Either out of fear of gang retaliation or out of familial loyalty to Allison, Ortiz had every motive to be less than candid with the police. The same motivation that influenced Ortiz to neglect to name the two men on the balcony would, I think, encourage him to shift the blame for the fatal shot from his cousin to Defendant. In this case the person in the best position to gauge the candor of the out of court statement was Detective Shawn, who alone observed Ortiz’s demeanor at the time of the interview. When the person in the best position to judge a witness’s candor feels that the witness was being less than truthful, I am uncomfortable holding that the witness’s statement bears circumstantial guarantees of trustworthiness.
{80} We have said — and as a general matter I agree — that we should defer to the discretion of the trial judge on evidentiary matters. State v. Ross, 1996-NMSC-031 , 122 N.M. 15, 20 , 919 P.2d 1080, 1085 . Such deference, however, has less force in this case, where it is less than clear from the record that the trial court relied upon Rule 11-803(X) in its ruling. In fourteen pages of transcript discussion, the trial court only once mentions Rule 11-803(X) and it certainly cannot be said to be the thrust of the State’s argument. The State initially proffered the out of court statements under Rule 11-803(E) NMRA 2002. After a lengthy discussion of that rule, the State noted, “There are some other exceptions that I could argue or basis on the rules of evidence that I could argue for the admission of this, but that [, Rule 11-803(E),] I think is [the principal basis].” After Defendant’s response to the State’s argument, the State proffered several other grounds for the admission of the statement: Rule 11-801(D)(1)(c) NMRA 2002, Rule 11-803(X), Rule 11-804(A)(3) NMRA 2002, and Rule 11-613(B) NMRA 2002. During its discussion of Rule 11~803(X), the State recognized that it had not satisfied all of the requirements of the rule: “I realize that notice should be given sufficiently in advance of trial to allow counsel to prepare, but I think the Court is well aware of the circumstances under which Mr. Ortiz has appeared here. And I think that notice requirement is a somewhat flexible requirement.” The trial court never expressly decided whether the notice requirement is flexible enough to allow use of the rule absent notice.
{81} In response to these arguments, the trial court initially indicated that the statement was admissible as a combination of Rule ll-801(D)(l)(c) and 11~803(E). In making its final ruling, the trial court mentions, for the first time, Rule 11-803(X):
I think [that there are] grounds for me to go ahead and allow it at least to be played for the jury, just not admitted into evidence as an exhibit, but for all the other reasons that were cited by [the State], 80BX and some of the other 804-A3. I do believe it’s appropriate to allow that.
The court then noted that the State could have impeached Ortiz with every line of the out-of-court statement, and that it was more efficient to just play the tape to the jury. While it is unclear from the transcript what the exact grounds for the trial court’s ruling were, it is clear that Rule 11-808(X) did not play a significant role in the deliberations. The trial court never made an express ruling that the three textual requirements of Rule 11-803(X) had been met, nor did it rule that the State’s failure to comply with the notice requirement was excusable. Under those circumstances, I am not persuaded that the reasons for the principle of deference apply.
{82} The Court of Appeals has said of the essentially identical predecessor to Rule 11-803(X) that it “cannot be read to mean that hearsay which almost, but not quite, fits another specific exception, may be admitted under the ‘other exceptions’ subsection____” State v. Barela, 97 N.M. 723, 726 , 643 P.2d 287, 290 (Ct.App.1982). In this case the State appears to me to rely on this rule in a way the Court of Appeals rejected as contrary to its purpose. As its first sentence makes clear, Rule 11-803(X) should be used in a novel situation not considered by the drafters and not “specifically covered by any of the foregoing exceptions----” It should not be used when the statement is of a type expressly considered by other exceptions, but which does not satisfy the rules those exceptions establish.
{83} In this case, the State initially offered the testimony under Rule 11-803(E) (recorded recollection), and that was the focus of most of its discussion. The State also offered the hearsay under a number of other rules: Rule 11-613(B) (extrinsic proof of pri- or inconsistent statements), Rule 11-801(D)(1)(c) (statements of identification), Rule 11-804(A)(3) (one of the definitions of unavailable) and Rule 11-803(X). None appears to support the use of Ortiz’s interview with the police.
{84} We have already noted in the related case State v. Allison, 2000-NMSC-027 , ¶ 30, 129 N.M. 566 , 11 P.3d 141 , that Rule 11-803(E) is not a proper ground for the admission of this statement. In that case, we ultimately allowed the admission of Ortiz’s out-of-court statement under Rule 11-803(X), not on the merits, but because the defendant in that case did not argue against the use of that rule. Id., ¶31. Rule 11-804(A)(3) is simply the definition of unavailable that would apply to Ortiz and is not a ground for the admission of the statement. Rule 11-613(B) would allow, in this ease, for the impeachment of Ortiz with extrinsic proof of those out-of-court statements, but would not allow them to come in for substantive purposes.
{85} Finally, Rule ll-801(D)(l)(c) (statements of identification) would not allow the statements to come in because Ortiz’s interview did not identify either of the two shooters but instead described the shooting. Majority Opinion, ¶ 4. State v. Lopez, 1997-NMCA-075 , 123 N.M. 599 , 943 P.2d 1052 recognizes that courts ought to give a narrow interpretation of the word identification, stating: “Identification in its usual sense hinges upon a witness’ recognition of a suspect and ability to match the person then to the person now and give assurances that this is the same individual.” Lopez, 1997-NMCA-075, ¶ 11 , 123 N.M. 599 , 943 P.2d 1052 . In this case Ortiz described seeing a “big guy” and a “little guy.” He also described what each was wearing and told how the big guy asked for the gun, but the little guy did not want to give it to him. The little guy then yelled at the four below, “You guys think I’m joking,” before shooting. Although this description might help the police find the alleged perpetrators, I do not believe we ought to characterize it as a statement of identification under Rule ll-801(D)(l)(c), because in it Ortiz did not match any current suspect to the people he witnessed at the crime scene.
{86} In this case, the State was faced with an out-of-court statement that was almost, but not quite, a recorded recollection under 11-803(E), and was almost, but not quite, a statement of identification under Rule 11-801(D)(1)(e). The statement was thus “specifically covered by [some] of the foregoing exceptions____” Rule 11-803(X). It did not, however, satisfy the requirements of any of those exceptions. In this situation the use of Rule 11-803(X) seems contrary to its purpose, and allows the State to avoid the requirements of the hearsay rule and its normal exceptions.
{87} I would reverse the trial court’s determination that Ortiz’s hearsay statement was admissible and reverse Defendant’s convictions. I do not think that Rule 11-803(X) allows the admission of his statement because the elements of that rule are not met, because the trial court did not seem to rely on that rule in its decision, and because the use of Rule 11-803(X) in this context seems contrary to its purpose. Because I find none of the other rules relied upon by the State and the trial court persuasive, I would remand for a new trial and not allow the substantive use of the evidence. I respectfully dissent from part III(B). I concur in parts II, 111(A), IV, V, VI, VIII, IX and XI. Because of my disposition of Defendant’s evidentiary objection, I would not reach parts VII or X.
I CONCUR: GENE E. FRANCHINI, Justice.