{ "id": 183106, "name": "STATE of New Mexico, Plaintiff-Respondent, v. Michael TONEY, Defendant-Petitioner", "name_abbreviation": "State v. Toney", "decision_date": "2002-02-01", "docket_number": "No. 26,618", "first_page": "558", "last_page": "563", "citations": [ { "type": "official", "cite": "131 N.M. 558" }, { "type": "parallel", "cite": "40 P.3d 1002" }, { "type": "parallel", "cite": "2002-NMSC-003" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "752 N.E.2d 904", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "919" } ], "opinion_index": 0 }, { "cite": "93 Ohio St.3d 49", "category": "reporters:state", "reporter": "Ohio St. 3d", "case_ids": [ 248253 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/ohio-st-3d/93/0049-01" ] }, { "cite": "620 N.W.2d 688", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 11167147 ], "pin_cites": [ { "page": "697-98" } ], "opinion_index": 0, "case_paths": [ "/nw2d/620/0688-01" ] }, { "cite": "29 P.3d 305", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 9489681 ], "pin_cites": [ { "page": "312-13" } ], "opinion_index": 0, "case_paths": [ "/p3d/29/0305-01" ] }, { "cite": "149 L.Ed.2d 669", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "121 S.Ct. 1747", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2001, "opinion_index": 0 }, { "cite": "532 U.S. 1013", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9365761, 9365795, 9365667, 9365446, 9365415, 9365480, 9365515, 9365387, 9365711, 9365553, 9365370, 9365596, 9365341, 9365630 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/532/1013-13", "/us/532/1013-14", "/us/532/1013-11", "/us/532/1013-05", "/us/532/1013-04", "/us/532/1013-06", "/us/532/1013-07", "/us/532/1013-03", "/us/532/1013-12", "/us/532/1013-08", "/us/532/1013-02", "/us/532/1013-09", "/us/532/1013-01", "/us/532/1013-10" ] }, { "cite": "148 L.Ed.2d 1002", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "121 S.Ct. 1138", "category": "reporters:federal", "reporter": "S. 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BACA, Justice, PAMELA B. MINZNER, Justice, PETRA JIMENEZ MAES, Justice.", "GENE E. FRANCHINI, Justice (dissenting)." ], "parties": [ "STATE of New Mexico, Plaintiff-Respondent, v. Michael TONEY, Defendant-Petitioner." ], "opinions": [ { "text": "OPINION\nSERNA, Chief Justice.\n{1} Defendant Michael Toney was convicted following a jury trial of two counts of false imprisonment and one count of tampering with evidence. Defendant appealed a single issue, relating to a single count of false imprisonment, to the Court of Appeals: whether the trial court erred in admitting hearsay testimony, either under the Rules of Evidence or under the Confrontation Clause of the Sixth Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment. The Court of Appeals affirmed by memorandum opinion based on this Court\u2019s opinions in State v. Gonzales, 1999-NMSC-033, 128 N.M. 44, 989 P.2d 419, cert. denied, 529 U.S. 1025, 120 S.Ct. 1434, 146 L.Ed.2d 323 (2000), and State v. Torres, 1998-NMSC-052, 126 N.M. 477, 971 P.2d 1267. This Court then granted Defendant\u2019s petition for writ of certiorari. We affirm.\nI. Facts\n{2} The State charged Defendant with murder, false imprisonment, tampering with evidence, and various other crimes for his role in Ty Lowery\u2019s death. Defendant and several others were involved in an altercation with Lowery at Defendant\u2019s house. Lowery was shot at close range. Two witnesses, including Robert Aragon, an employee of Defendant, testified that Claudia Moreno shot Lowery. Adam Montoya, another employee of Defendant, took the wounded Lowery to a remote area and left him to die. Lowery\u2019s body was found at the remote location the following day. At trial, the State advanced the theory that Defendant ordered Moreno to shoot Lowery and then ordered Montoya to leave Lowery in an isolated area to die. The jury returned a verdict of guilty on two counts of false imprisonment and one count of tampering with evidence.\nII. Discussion\n{3} The sole issue presented to this Court is whether the trial court erred in admitting an out-of-court statement. Specifically, Defendant complains about Aragon\u2019s testimony concerning an out-of-court statement made to him by Montoya. Aragon had been at Defendant\u2019s house on the night of the shooting and left after witnessing the shooting. Aragon encountered Montoya the following day and testified that he asked Montoya what happened after he, Aragon, had left Defendant\u2019s house following the shooting. Aragon testified: \u201c[Montoya] proceeded to tell me that he had driven [the victim] to the river on the direction from [Defendant], to leave [the victim] at the river.\u201d We note that this testimony implicitly contains two out-of-court statements: (1) Defendant\u2019s statement to Montoya to leave the victim at the river; and (2) Montoya\u2019s statement to Aragon that he took the victim to the river on Defendant\u2019s direction on the previous night. The first statement is not hearsay. Defendant\u2019s statement to Montoya was a directive or a command and was offered not for its truth but for the fact that it was made. See Rule 11-801(C) NMRA 2002; Jim v. Budd, 107 N.M. 489, 491, 760 P.2d 782, 784 (Ct.App.1987) (stating that \u201cstatements or conduct which are non-assertive are not hearsay,\u201d that \u201cimplied assertions are not hearsay,\u201d and that \u201c[t]he words, \u2018let the gates down against the chain,\u2019 is a direction and not an assertion that would either be true or false\u201d); see also Fed.R.Evid. 801 advisory committee\u2019s note; cf. State v. Ross, 1996-NMSC-031, 122 N.M. 15, 20 n. 2, 919 P.2d 1080, 1085 n. 2 (concluding that a statement did not raise a \u201chearsay within hearsay\u201d issue because the statement made by another to the declarant was not offered for its truth). Moreover, as the Court of Appeals observed, this statement would have been an admission by a party-opponent rather than hearsay even if it had been offered for its truth. Rule 11-801(D)(2)(a). The second statement identified above, however, is hearsay. Rule 11-801(C). The State offered Montoya\u2019s statement to Aragon under an exception to the hearsay rule, Rule 11-804(B)(3) NMRA 2002, and the trial court admitted the statement on this basis. Rule 11-804(B)(3) provides that a statement is not excluded by the hearsay rule if the declarant is unavailable and the statement \u201cso far tended to subject the declarant to ... criminal liability ... that a reasonable person in the declarant\u2019s position would not have made the statement unless believing it to be true.\u201d\n{4} Defendant does not challenge Montoya\u2019s unavailability. Defendant limits his claim of error to his contention that Montoya\u2019s statement was not a statement against penal interest. In particular, Defendant claims that Montoya\u2019s statement to Aragon shows blame shifting and is therefore inherently unreliable. According to Defendant, this statement shows that Montoya was asserting a duress defense to Montoya\u2019s involvement in the crime. Defendant also claims that Aragon had a motive to lie because he made a deal with the State, which also made the statement unreliable. Thus, Defendant claims that the trial court abused its discretion in finding that this was a statement against penal interest admissible under Rule 11-804(B)(3).\n{5} As an initial matter, we point out that Aragon\u2019s motive to lie, as opposed to the declarant Montoya\u2019s, is wholly irrelevant to the question of the admissibility of Montoya\u2019s statement as an exception to the hearsay rule. Aragon testified in court and was subject to full and complete cross-examination. The hearsay rule is not concerned with the veracity of the testifying witness. \u201cThe test under the catch-all rules is whether the out-of-court statement \u2014 not the witness\u2019s testimony \u2014 has circumstantial guarantees of trustworthiness. The credibility of the witness, who is subject to cross-examination, is irrelevant to the trustworthiness analysis.\u201d State v. Williams, 117 N.M. 551, 561, 874 P.2d 12, 22 (1994).\n{6} With respect to Defendant\u2019s argument that the statement was not against Montoya\u2019s penal interest, we believe that the trial court correctly ruled that the statement is admissible under Rule 11-804(B)(3). Montoya\u2019s reference to his own involvement in the crime clearly falls within the parameters of this exception to the hearsay rule. Montoya admitted his involvement in serious crimes, including murder, and a reasonable person acting under similar circumstances would not have done so unless believing the statement to be true. Defendant argues, however, that Montoya\u2019s specific reference to acting on Defendant\u2019s direction is not against Montoya\u2019s penal interest. Defendant\u2019s argument is contrary to this Court\u2019s holdings in Torres and Gonzales. Montoya\u2019s reference to Defendant is a \u201cfacially-neutral but contextually-incriminating detail[ ] [that] may be admitted if a reasonable person in the declarant\u2019s position would not have revealed [it] unless believing [it] to be true due to [its] strong tendency to subject the declarant to criminal liability.\u201d Torres, 1998-NMSC-052, \u00b6 14, 126 N.M. 477, 971 P.2d 1267. As with the statements at issue in Torres and Gonzales, Montoya\u2019s statement implicated him in serious crimes. The part of the statement referring to Defendant would provide necessary context to explain Montoya\u2019s motive for taking the victim to the river. This part of the statement also supports a conspiracy between Montoya and Defendant. The detail of Defendant\u2019s involvement \u201cwould significantly aid law enforcement officials in securing criminal liability\u201d against Montoya, the declarant. Torres, 1998-NMSC-052, \u00b6 17, 126 N.M. 477, 971 P.2d 1267; accord Gonzales, 1999-NMSC-033, \u00b6 11, 128 N.M. 44, 989 P.2d 419. Further, as with the declarant in Gonzales, Montoya \u201cmade his statement to an acquaintance in casual conversation. There is no indication that [he] did not understand his statement to be disserving or that [he] made his statement pursuant to self-interest or some other countervailing motive.\u201d 1999-NMSC-033, \u00b634, 128 N.M. 44, 989 P.2d 419. Contrary to Defendant\u2019s assertion, there is no indication from Montoya\u2019s statement that Montoya believed that he acted under duress. Furthermore, there is no apparent reason for Montoya to have made a false assertion of duress to an acquaintance before becoming a suspect in the killing. We do not believe that Montoya\u2019s statement can reasonably be interpreted as shifting blame to Defendant.\n{7} In short, Montoya\u2019s statement \u201cso far tended to subject [him] to ... criminal liability ... that a reasonable person in [Montoya\u2019s] position would not have made the statement unless believing it to be true.\u201d Rule 11-804(B)(3). Montoya\u2019s statement contains none of the dangers associated with out-of-court statements because his statement was unambiguous, it was genuinely contrary to his penal interest, it described events occurring on the night before the statement, and it concerned actions taken directly by Montoya. See Williams, 117 N.M. at 560-61, 874 P.2d at 21-22 (discussing \u201cthe four primary dangers of hearsay,\u201d including the danger that the witness misinterpreted the declarant, the danger that the declarant consciously lied, the danger that the declarant had a faulty memory, and the danger that the declarant misperceived events). The trial court did not abuse its discretion in admitting the statement under Rule 11-804(B)(3).\n{8} Defendant also contends that the admission of Montoya\u2019s statement violates the Confrontation Clause in the Sixth Amendment to the United States Constitution, as applied to New Mexico through the Fourteenth Amendment. Although Defendant references the right of confrontation in the New Mexico Constitution, he neither cites the specific provision in the Constitution providing this protection nor argues that the New Mexico Constitution should be interpreted more broadly than the Sixth Amendment in this context. See State v. Gomez, 1997-NMSC-006, \u00b6\u00b6 22-23, 122 N.M. 777, 932 P.2d 1 (discussing preservation requirements for a state constitutional argument). In any event, this Court\u2019s opinion in Torres adequately addresses Defendant\u2019s reference to the state constitution. Torres, 1998-NMSC-052, \u00b6\u00b6 25, 26 n. 3, 32, 126 N.M. 477, 971 P.2d 1267. Therefore, we limit our discussion to Defendant\u2019s right of confrontation under the Sixth and Fourteenth Amendments to the United States Constitution.\n{9} In order to protect a defendant\u2019s right of confrontation, the United States Supreme Court has indicated that an out-of-court statement made by an unavailable declarant which is offered against an accused must \u201cbear[ ] \u2018adequate indicia of reliability.\u2019 Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.\u201d Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). In Torres, this Court held that Rule 11-804(B)(3) is a firmly rooted exception to the hearsay rule for Confrontation Clause purposes, largely because we had limited the reach of Rule 11-804(B)(3) in accordance with the United States Supreme Court\u2019s interpretation of Federal Rule of Evidence 804(b)(3) in Williamson v. United States, 512 U.S. 594, 599-604, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994). See Torres, 1998-NMSC-052, \u00b6\u00b6 29-32, 126 N.M. 477, 971 P.2d 1267. However, Defendant contends that Montoya\u2019s statement must be viewed as inherently unreliable pursuant to the plurality opinion of the United States Supreme Court in Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999). Defendant\u2019s contention is inconsistent with our discussion of Lilly in Gonzales.\n{10} In Lilly, the plurality stated that the category of declarations against penal interests, as interpreted under Virginia\u2019s rules of evidence, is too broad to make generalizations for purposes of a Confrontation Clause analysis and that accomplices\u2019 confessions to police inculpating a criminal defendant do not fall within a firmly rooted hearsay exception and therefore must be examined under the \u201cparticularized guarantees of trustworthiness\u201d prong of the Confrontation Clause inquiry. Id. at 127, 134-36, 119 S.Ct. 1887 (plurality opinion). The defendant in Gonzales, like Defendant in the present case, argued that our Confrontation Clause analysis in Torres was in conflict with Lilly. Gonzales, 1999-NMSC-033, \u00b6 32, 128 N.M. 44, 989 P.2d 419. We unanimously rejected this argument for two reasons. First, we believed that Lilly was distinguishable on its facts. Gonzales, 1999-NMSC-033, \u00b6 34, 128 N.M. 44, 989 P.2d 419. Lilly involved a statement given to the police during a custodial interrogation in response to leading questions, and the declarant asserted that the defendant killed the murder victim. Id.; see United States v. Shea, 211 F.3d 658, 669 (1st Cir.2000) (\u201cLilly\u2019s main concern was with statements in which, as is common in police-station confessions, the declarant admits only what the authorities are already capable of proving against him [or her] and seeks to shift the principal blame to another (against whom the prosecutor then offers the statement at trial).\u201d), cert. denied, 531 U.S. 1154, 121 S.Ct. 1101, 148 L.Ed.2d 973 (2001). By contrast, like the present case, Gonzales involved a statement made to an acquaintance in casual conversation, and the declarant acknowledged an active role in the lolling. Gonzales, 1999-NMSC-033, \u00b6 34, 128 N.M. 44, 989 P.2d 419.\n{11} Second, we rejected the defendant\u2019s reliance on Lilly in Gonzales because we concluded that Lilly did not preclude a determination that New Mexico\u2019s Rule 11-804(B)(3) is a firmly rooted exception. Gonzales, 1999-NMSC-033, \u00b6 36, 128 N.M. 44, 989 P.2d 419. Beyond the fact that the firmly rooted exception discussion in Lilly was contained in a plurality opinion, and thus is not binding on this Court, see Shea, 211 F.3d at 669 (stating that \u201cLilly\u2019s full reach may be unclear [because] there was no single \u2018majority\u2019 opinion\u201d); Taylor v. Commonwealth, 63 S.W.3d 151, 167 (Ky.2001) (\u201cAs a plurality opinion, [Lilly ] is not binding precedent on the issue of whether statements against penal interests are \u2018firmly rooted\u2019 for Confrontation Clause purposes.\u201d), we noted in Gonzales that \u201cthe co-conspirator\u2019s confession in Lilly would have failed to qualify as a statement against penal interest in New Mexico under Rule 11-804(B)(3), because the confession in that case did not inculpate the declarant as to the murder.\u201d Gonzales, 1999-NMSC-033, \u00b6 37, 128 N.M. 44, 989 P.2d 419. Thus, Lilly concerned a broader exception to the hearsay rule than New Mexico\u2019s Rule 11-804(B)(3). As a result, based on our more restrictive construction of Rule 11-804(B)(3) in accordance with the Supreme Court\u2019s opinion in Williamson, we determined that New Mexico\u2019s Rule 11-804(B)(3) is a firmly rooted exception to the hearsay rule because \u201cthe \u2018particularized guarantees of trustworthiness\u2019 imposed by the federal Confrontation Clause are inherently and necessarily a part of the statement-against-interest analysis under our Rule 11-804(B)(3).\u201d Gonzales, 1999-NMSC-033, \u00b6 39, 128 N.M. 44, 989 P.2d 419; accord United States v. Gallego, 191 F.3d 156, 167 n. 5 (2d Cir.1999) (declining to decide whether Federal Rule of Evidence 804(b)(3), as interpreted in Williamson, is a firmly rooted exception but noting that Lilly \u201cdoes not foreclose [that] possibility\u201d because \u201cany hearsay statement admitted consistent with the requirements of Rule 804(b)(3) ... is considerably more reliable than the largely \u2018non-self-inculpatory\u2019 declaration disapproved by the plurality in Lilly \u201d). In a recent unanimous opinion, we \u201creaffirmed] that, in New Mexico, a statement against penal interest within the meaning of Rule 11-804(B)(3) is a firmly rooted exception to the hearsay rule.\u201d State v. Martinez-Rodriguez, 2001-NMSC-029, \u00b6 27, 131 N.M. 47, 33 P.3d 267.\n{12} As we determined in Gonzales, Lilly is distinguishable from this case because Montoya made his statement to an acquaintance in a casual conversation rather than to the police during a custodial interrogation. For Confrontation Clause purposes, this distinction is critical. See, e.g., Denny v. Gudmanson, 252 F.3d 896, 903 (7th Cir.), cert. denied, \u2014 U.S. -, 122 S.Ct. 311, 151 L.Ed.2d 232 (2001); United States v. Westmoreland, 240 F.3d 618, 627-28 (7th Cir. 2001); United States v. Boone, 229 F.3d 1231, 1234 (9th Cir.2000), cert. denied, 531 U.S. 1170, 121 S.Ct. 1138, 148 L.Ed.2d 1002, and cert. denied, 532 U.S. 1013, 121 S.Ct. 1747, 149 L.Ed.2d 669 (2001); Shea, 211 F.3d at 669; Stevens v. People, 29 P.3d 305, 312-13 (Colo.2001); State v. Henderson, 620 N.W.2d 688, 697-98 (Minn.2001); State v. Issa, 93 Ohio St.3d 49, 752 N.E.2d 904, 919 (2001). Because Montoya\u2019s statement is admissible under Rule 11-804(B)(3) and was not made during a custodial interrogation, Montoya\u2019s statement necessarily contains particularized guarantees of trustworthiness, and it is unnecessary for us to undertake any further inquiry into Defendant\u2019s Confrontation Clause argument.\nIII. Conclusion\n{13} The trial court did not abuse its discretion in finding the statement was admissible under Rule 11-804(B)(3) as a statement against penal interest. The admission of the statement did not violate the Confrontation Clause. We affirm Defendant\u2019s convictions of two counts of false imprisonment and one count of tampering with evidence.\n{14} IT IS SO ORDERED.\nWE CONCUR: JOSEPH F. BACA, Justice, PAMELA B. MINZNER, Justice, PETRA JIMENEZ MAES, Justice.\nGENE E. FRANCHINI, Justice (dissenting).", "type": "majority", "author": "SERNA, Chief Justice." }, { "text": "FRANCHINI, Justice\n(dissenting).\n{15} I respectfully dissent.\n{16} Adam Montoya did not testify at trial and therefore was not subject to cross-examination. However, over objection, Robert Aragon testified that Montoya told him that Defendant instructed Montoya to \u201cleave [the victim] at the river.\u201d Montoya\u2019s statement to Aragon was hearsay and could not be admitted unless, pursuant to Rule 11-804(B)(3) NMRA 2002, it \u201cso far tended to subject [Montoya] to ... criminal liability ... that a reasonable person in the declarant\u2019s position would not have made the statement unless believing it to be true.\u201d It is my opinion that because Montoya\u2019s statement attempted to shift blame from himself to Defendant, it was more exculpatory than inculpatory, and therefore lacked sufficient reliability to exempt it from the hearsay rule.\n{17} Furthermore, I agree with Defendant that the United States Supreme Court, in a plurality opinion, has expressed distrust for precisely this sort of evidence. Lilly v. Virginia, 527 U.S. 116, 131, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999). In Lilly, the Court recognized that \u201caccomplices\u2019 confessions that incriminate defendants\u201d are \u201cpresumptively unreliable.\u201d Id. See also Denny v. Gudmanson, 252 F.3d 896, 903 (7th Cir.2001) (describing \u201ca confession that shifts or spreads blame from the declarant to incriminate co-criminals\u201d as the type of statement \u201cwhose reliability is particularly suspect\u201d). The record is devoid of other indications of reliability that would overcome my initial distrust. It is my opinion that the trial court\u2019s admission of this evidence without the possibility of cross-examination violates the confrontation clauses of both the United States and New Mexico constitutions. Contrary to the majority\u2019s conclusion, I would reverse the Court of Appeals and remand for a new trial on one count of false imprisonment.", "type": "dissent", "author": "FRANCHINI, Justice" } ], "attorneys": [ "Gary C. Mitchell, P.C., Gary C. Mitchell, Ruidoso, NM, Garza Law Firm, Carmen E. Garza, Las Cruces, NM, Susan Gibbs, Santa Fe, NM, for Petitioner.", "Patricia A. Madrid, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Respondent." ], "corrections": "", "head_matter": "2002-NMSC-003\n40 P.3d 1002\nSTATE of New Mexico, Plaintiff-Respondent, v. Michael TONEY, Defendant-Petitioner.\nNo. 26,618.\nSupreme Court of New Mexico.\nFeb. 1, 2002.\nGary C. Mitchell, P.C., Gary C. Mitchell, Ruidoso, NM, Garza Law Firm, Carmen E. Garza, Las Cruces, NM, Susan Gibbs, Santa Fe, NM, for Petitioner.\nPatricia A. Madrid, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Respondent." }, "file_name": "0558-01", "first_page_order": 592, "last_page_order": 597 }