{ "id": 3692862, "name": "STATE of New Mexico, Plaintiff-Petitioner, v. Stephanie LOPEZ, Defendant-Respondent", "name_abbreviation": "State v. Lopez", "decision_date": "2007-06-21", "docket_number": "No. 29,803", "first_page": "138", "last_page": "150", "citations": [ { "type": "official", "cite": "142 N.M. 138" }, { "type": "parallel", "cite": "164 P.3d 19" }, { "type": "parallel", "cite": "2007-NMSC-037" } ], "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": "83 N.M. 619", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5342325 ], "weight": 2, "pin_cites": [ { "page": "621" }, { "page": "799" } ], "opinion_index": 0, "case_paths": [ "/nm/83/0619-01" ] }, { "cite": "112 N.M. 485", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720248 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "487" }, { "page": "1109" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0485-01" ] }, { "cite": "475 U.S. 673", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6207521 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "684" } ], "opinion_index": 0, "case_paths": [ "/us/475/0673-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "weight": 3, "year": 1967, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "507 U.S. 619", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6235767 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "630" } ], "opinion_index": 0, "case_paths": [ "/us/507/0619-01" ] }, { "cite": "547 U.S. 813", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3275498 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "2269" } ], "opinion_index": 0, "case_paths": [ "/us/547/0813-01" ] }, { "cite": "2004-NMSC-029", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224656 ], "weight": 15, "pin_cites": [ { "page": "\u00b6 2" }, { "page": "\u00b6 7" }, { "page": "\u00b6 9" }, { "page": "\u00b638" }, { "page": "\u00b6 53" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0348-01" ] }, { "cite": "2004-NMSC-030", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224666 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 21" }, { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0309-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 5, "year": 2004, "pin_cites": [ { "page": "53-54" }, { "page": "68" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "2004-NMSC-037", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224659 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 23" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0561-01" ] }, { "cite": "527 U.S. 116", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1248251 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "136-37" } ], "opinion_index": 0, "case_paths": [ "/us/527/0116-01" ] }, { "cite": "114 N.M. 221", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731642 ], "weight": 4, "pin_cites": [ { "page": "225" }, { "page": "671" }, { "page": "224" }, { "page": "671", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0221-01" ] }, { "cite": "128 N.M. 454", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 106506 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/128/0454-01" ] }, { "cite": "2006-NMCA-071", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2543564 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 1" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0705-01" ] }, { "cite": "92 N.M. 456", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557177 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "460" }, { "page": "1051" } ], "opinion_index": 1, "case_paths": [ "/nm/92/0456-01" ] }, { "cite": "2007-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3692773 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "\u00b624", "parenthetical": "quoting State v. Frank, 92 N.M. 456, 460, 589 P.2d 1047, 1051 (1979)" }, { "parenthetical": "quoting State v. Frank, 92 N.M. 456, 460, 589 P.2d 1047, 1051 (1979)" }, { "parenthetical": "quoting State v. Frank, 92 N.M. 456, 460, 589 P.2d 1047, 1051 (1979)" } ], "opinion_index": 1, "case_paths": [ "/nm/142/0001-01" ] }, { "cite": "2004-NMSC-029", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224656 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 1, "case_paths": [ "/nm/136/0348-01" ] }, { "cite": "2006-NMCA-071", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2543564 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 41" } ], "opinion_index": 1, "case_paths": [ "/nm/139/0705-01" ] } ], "analysis": { "cardinality": 1310, "char_count": 42532, "ocr_confidence": 0.683, "pagerank": { "raw": 1.2284464960265323e-07, "percentile": 0.6050837326809401 }, "sha256": "1018ff82699ebdf308ddba694e58bdceeb2fbcb5b888cf91a3da4d5fe95cd729", "simhash": "1:9e3c5aa67e4e98ca", "word_count": 6992 }, "last_updated": "2023-07-14T22:28:07.264738+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: PAMELA B. MINZNER and PATRICIO M. SERNA, Justices.", "EDWARD L. CH\u00c1VEZ, Chief Justice, and RICHARD C. BOSSON, Justice (concurring in part and dissenting in part).", "I CONCUR: RICHARD C. BOSSON, Justice." ], "parties": [ "STATE of New Mexico, Plaintiff-Petitioner, v. Stephanie LOPEZ, Defendant-Respondent." ], "opinions": [ { "text": "OPINION\nMAES, Justice.\n{1} Defendant Stephanie Lopez was convicted by a jury of negligently permitting child abuse resulting in death or great bodily harm, and negligently permitting child abuse not resulting in death or great bodily harm, contrary to NMSA 1978, Section 30-6-1 (2001). Defendant was tried with four codefendants facing various charges as a result of the death of Defendant\u2019s five-month-old daughter, Baby Briana. Prior to trial, Defendant made a motion to sever her trial from that of her eodefendants. She asserted that her right to confrontation would be violated in a joint trial if the custodial statements of her codefendants were admitted as evidence. Defendant\u2019s motion was denied. At Defendant\u2019s trial, the district court admitted into evidence the statements made by her codefendants while they were in custody. On appeal, the Court of Appeals held that the admission of the codefendants\u2019 statements resulted in a violation of Defendant\u2019s Sixth Amendment right to confrontation and that this constitutional error was not harmless. The Court of Appeals reversed Defendant\u2019s conviction and remanded her ease with the instruction that Defendant be tried separately. The State petitioned this Court to review the Court of Appeals\u2019 Opinion. We granted certiorari on the State\u2019s petition and reverse the Court of Appeals\u2019 Opinion as it applies to Defendant, Stephanie Lopez.\nFACTS AND PROCEDURE BELOW\n{2} Baby Briana died on July 19, 2002. At the time, Defendant lived with Baby Briana\u2019s father, Andrew Walters (Father), in the mobile home of Father\u2019s mother, Patricia Walters (Grandmother). Defendant and Father shared one bedroom of the mobile home with Baby Briana, the couple\u2019s eighteen-month-old son, Andy Jr., and Defendant\u2019s twin brother, Steven Lopez (Uncle).\n{3} On the morning of July 19, 2002, Defendant made a 911 call to report that Baby Briana had stopped breathing. Defendant and Father administered C.P.R. on Baby Briana until paramedics arrived and transported her to the hospital. When Baby Briana arrived in the emergency room she had bruises and bite marks on her body and head, and she appeared lifeless. After unsuccessful attempts to resuscitate her, Baby Briana was pronounced dead.\n{4} Defendant\u2019s statement to the attending physician and nurse in the emergency room indicated that Baby Briana\u2019s injuries were the result of Baby Briana falling out of bed. However, the forensic pathologist who testified at Defendant\u2019s trial stated that Baby Briana\u2019s injuries were not the result of Baby Briana falling out of bed. The autopsy of Baby Briana revealed that she died from cranial cerebral injuries. She had bruising and scraping injuries throughout her head, as well as on her upper forehead. She had numerous human bite marks all over her body and head, fifteen in total. There were extensive injuries to Baby Briana\u2019s head and fatal injuries to her brain. She had bleeding within the membranes around the brain as well as around the nerves of her eyes. The autopsy revealed that Baby Briana\u2019s skull was fractured in two places, on two different bones, and that the fractures were 5-7 days old. An examination of the membranes around the brain showed the presence of both old and new blood, indicating that Baby Briana had received a separate brain injury in the past. Baby Briana\u2019s optical nerves were filled with both fresh and old blood which meant that she had been violently shaken on at least two occasions. Baby Briana suffered two rib fractures on the right side of her chest several weeks before her death. She also had bucket handle fractures on both her right and left thigh bones as well as a fracture through the top of her left arm. These injuries were the result of her limbs being forced, twisted, or yanked. Baby Briana\u2019s anus and vagina were also injured. Baby Briana\u2019s death was characterized as a homicide.\nStatements of Defendant and her Codefendants\n{5} In the course of the investigation of Baby Briana\u2019s death, police interviewed Defendant, Father, Uncle, and Father\u2019s Brother, Robert Walters. Defendant was interviewed on July 19, 2002. In her statement to police, Defendant said that a couple of days prior to Baby Briana\u2019s death, Defendant had observed Father throwing Baby Briana up in the air and saw her \u201ccome down.\u201d Defendant said that she told Father not to do that because he was going to hurt the child. Defendant attributed the bruising on Baby Briana\u2019s head to the fact that Baby Briana rolled off the bed a few days prior to July 19, 2002. Defendant stated that on the night of July 18, 2002, she was in her bedroom of the mobile home with Father, Uncle, Andy Jr., and Father\u2019s brother Robert Walters. Defendant said that she had two to three beers prior to falling asleep at approximately 10:00 p.m. Father and the two uncles remained awake. When Defendant woke up at 9:45 a.m., Baby Briana was bruised, pale, and not breathing. Defendant said that she and Father were worried about Baby Briana\u2019s condition so they called Grandmother and then called 911. The 911 call was made at 10:20 a.m. Defendant stated that the bruising and other markings on Baby Briana\u2019s body were not there when she went to bed the night before. Defendant\u2019s explanation as to the bruising documented by medical personnel was that Father had said maybe Uncle threw Baby Briana up in the air. Defendant stated that she had seen Father throw Baby Briana up into the air but she said she had not seen it occur on the night of July 18, 2002. Defendant stated that she had seen Father throw Baby Briana into the air and saw her head hit the ceiling in the bedroom approximately three times. Defendant also said that maybe Uncle threw Baby Briana up into the air as well. In explaining the bite marks, Defendant said that she had seen her son bite Baby Briana.\n{6} Father was also interviewed by police on July 19, 2002. In his statement to police, Father admitted to throwing Baby Briana in the air. He stated that he had done it four days prior to her death and that on the night of July 18, 2002, he said that he threw her up into the air two or three times and that her head hit the ceiling. Father also stated that Uncle threw Baby Briana in the air.\n{7} During the police interview, Father recounted his activities from the night of July 18, 2002. He said he got off work at 5:00 p.m. and arrived home around 6:00 p.m. Sometime around 8:00 p.m., he picked up Uncle at work and they purchased a case of beer. They returned to their house and spent the rest of the night in their room with Mother, Baby Briana, and Andy Jr. He said he went to sleep between 12:30 and 1:00 a.m. and checked Baby Briana around 3:00 a.m. He then got up around 7:00 a.m., played with Baby Briana, and gave her a blanket, and changed her diaper. Father said he awoke again at around 10:00 a.m. and he and Defendant discovered Baby Briana was not breathing so they called 911. In this portion of the interview, Father admitted only that Baby Briana had fallen off her bed during the night and that he caused two bite marks on her ribs, after initially claiming that his 18-month-old son made the bite marks.\n{8} After a break, the police continued interrogating Father and informed him that Baby Briana was dead. Father then admitted to throwing Baby Briana into the air and said that Baby Briana hit her head on the ceiling four days before she died. Father admitted to bruising Baby Briana, stating, \u201cI didn\u2019t mean for it to leave a bruise like that. Like I left her a bruise like that before, just from messing with her. [Mother] gets mad.\u201d Father admitted that on the night of July 18, 2002, he and Uncle were \u201cplaying a little rough\u201d with Baby Briana and throwing her into the air, with Baby Briana hitting the ceiling, and being dropped onto the floor when he \u201cmissed\u201d her. Father identified a particular bruise on a photo as being caused when Baby Briana hit the ceiling and another when she landed on the floor. Father also identified various bite marks that he acknowledged he made. Father said Baby Briana cried when she was dropped onto the floor, and when he was asked what he did to calm her down, he answered, \u201cI just kept throwing her in the air.\u201d\n{9} Father was also shown a photo of Baby Briana\u2019s anus, and Father became very upset and profane, saying to police that they were \u201cnot going to find any semen.\u201d Father said he cleaned Baby Briana\u2019s butt with a baby wipe, wrapped the baby wipe around his left index finger, and put the wrapped finger into Baby Briana\u2019s anus up to the second knuckle at the middle of his finger. When he took his finger out, \u201c[tjhere was a little bit of blood on there.\u201d\n{10} Father stated that Mother would sometimes get mad at Baby Briana and would pinch Baby Briana\u2019s ears and throw Baby Briana into her bouncy seat from a distance of about two feet. Father also stated that Mother questioned him about the bruises on Baby Briana and he informed her that he had been playing rough with her.\n{11} Uncle was also interviewed at the police station on July 19, 2002. Uncle gave an initial statement to police after being informed of his Miranda rights. Uncle stated that on the night of July 18, 2002, he was in the bedroom playing video games with Father and Mother. He said that Robert Walters came home with a friend and they stayed in the room together drinking beer. Uncle said that Defendant had four or five beers. Uncle stated that nothing unusual happened that night and he went to bed at 2:00 a.m. In a subsequent statement to police, Uncle admitted to throwing Baby Briana in the air and said that one time she hit her head on the ceiling. Police then confronted Uncle with admissions made by Father regarding the events of July 18, 2002. Uncle stated that Father was throwing Baby Briana up into the air and that she hit her head twice. After further questioning, Uncle admitted that he also threw Baby Briana into the air so that she would hit her head on the ceiling and allowed her to fall onto the floor. Uncle was then shown photographs of Baby Briana\u2019s anus. Initially Uncle denied touching Baby Briana\u2019s anus, saying, \u201cOh, no. I didn\u2019t do that. I didn\u2019t do nothing like that.\u201d When questioned further, his response changed to, \u201cI can\u2019t remember. I don\u2019t remember.\u201d Uncle then proceeded to talk about the number of beers he had consumed and he then said he could not remember starting a sex act with Baby Briana, but he remembered stopping because he realized what he was doing was wrong.\nDefendant\u2019s Trial\n{12} As a result of these events, Defendant was charged with negligently permitting child abuse resulting in death or great bodily harm, negligently permitting child abuse not resulting in death or great bodily harm, and intentional child abuse not resulting in great bodily harm, contrary to Section 30-6-1. Father, Uncle, Grandmother, and Robert Walters also faced various charges as a result of Baby Briana\u2019s death. The State filed a Statement of Joinder, requesting that Defendant be tried together with Father, Uncle, Grandmother, and Robert Walters. In response, Defendant filed a motion to sever her trial from that of her codefendants. In support of her motion, Defendant argued that a joint trial would result in unfair and incurable prejudice because the statements her co-defendants gave to law enforcement would be inadmissible against Defendant in a separate trial. The trial court denied Defendant\u2019s motion and proceeded with the joint trial of the five codefendants. The custodial statements of Defendant, Father, Uncle, and Robert Walters were admitted at the joint trial, over Defendant\u2019s objection that the admission of her codefendants\u2019 testimony would violate her right to confrontation.\n{13} Defendant was convicted of negligently permitting child abuse resulting in death or great bodily harm, negligently permitting child abuse not resulting in death or great bodily harm, and acquitted of intentional child abuse not resulting in great bodily harm. Defendant, Father, and Uncle appealed their convictions to the Court of Appeals. Grandmother and Robert Walters did not appeal. The Court consolidated the appeals of Defendant, Father, and Uncle and reversed the convictions of each of the defendants and remanded their cases with instructions that the defendants be tried separately. The Court held that the admission of the statements of the codefendants violated the defendants\u2019 Sixth Amendment right to confrontation and that this constitutional error was not harmless beyond a reasonable doubt. State v. Walters, 2006-NMCA-071, \u00b6 1, 139 N.M. 705, 137 P.3d 645. The State appealed to this Court arguing that the Court of Appeals erred in determining that (1) Defendant preserved her argument at trial, (2) her confrontation rights were violated, (3) this error was not harmless, and (4) Defendant is entitled to a separate trial.\nDISCUSSION\nPreservation\n{14} We first address the State\u2019s claim that Defendant failed to preserve her claim for severance. The State argues that Defendant failed to properly preserve the issue of whether her right to confrontation was violated when she was denied a separate trial and the statements of her eodefendants were admitted at her joint trial. The State asserts that Defendant did not preserve this argument for appeal because she failed to identify with specificity the portions of the statements that were the subject of her objection.\n{15} In order to preserve an issue for appeal, a defendant must make a timely objection that specifically apprises the trial court of the nature of the claimed error and invokes an intelligent ruling thereon. Rule 12-216 NMRA; State v. Varela, 1999\u2014 NMSC-045, \u00b6 25, 128 N.M. 454, 993 P.2d 1280. In the present case, Defendant made numerous objections, both prior to trial and during her joint trial. Defendant filed a Motion in Limine to sever her trial from that of her eodefendants, arguing that she would be prejudiced if the court admitted the statements of Father and Uncle. The trial court denied Defendant\u2019s motion. Defendant renewed her motion to sever after opening statements were made. The court again denied Defendant\u2019s motion, stating:\nCounsel, all of you have made a renewed motion on the record. I don\u2019t know that you need to do it over and over again, but you certainly all have a motion for severance. I ruled on it and I intend that be preserved for all of you. I certainly want you to be able to appeal any matter that you feel you should appeal.\nAfter her renewed motion to sever was denied, Defendant requested that, as an alternative to severance, the court redact the accusatory portions of Father\u2019s statement that refer to Defendant. This request was also denied by the court. Throughout trial, Defendant\u2019s codefendants raised objections based on \u201chearsay, [the] fifth amendment, and Bruton\u201d to the testimony of the police officers who introduced the statements of Father, Uncle, and Defendant. Defendant joined in these objections.\n{16} We find that Defendant\u2019s motion to sever and her objections at trial properly preserved her argument that the inclusion of her codefendants\u2019 statements resulted in a violation of her Sixth Amendment right to confront witnesses against her. By including the terms, \u201cBruton \u201d and \u201cConfrontation Clause\u201d in her objections, Defendant effectively put the court on notice of the specific nature of her objection and the impropriety of allowing a joint trial where the statements of eodefendants would be offered as evidence.\nSeverance\n{17} At trial and on appeal, Defendant\u2019s severance arguments were based on her assertion that the custodial statements made by Father and Uncle would not have been admissible against her in a separate trial. Severance may be necessary if evidence that is inadmissible at defendant\u2019s separate trial is admitted in a joint trial. See State v. Montoya, 114 N.M. 221, 225, 836 P.2d 667, 671 (Ct.App.1992). The conclusion that inadmissible evidence was introduced at a joint trial does not necessitate reversal of a denial of severance in all cases. \u201cA trial court has discretion in deciding whether or not to sever a case. On review of such a decision we must decide whether, due to the joint trial, there is an appreciable risk that the jury convicted for illegitimate reasons.\u201d Id. at 224, 836 P.2d at 671 (citation omitted). Therefore, we begin our inquiry by examining the statements of Father and Uncle to determine if they were erroneously admitted. Then we examine the impact of those statements.\nStatements\n{18} Whether the admission of a codefendant\u2019s custodial statements constitutes a violation of the Confrontation Clause of the Sixth Amendment of the United States Constitution presents a question of law which we review de novo. See Lilly v. Virginia, 527 U.S. 116, 136-37, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999); State v. Dedman, 2004-NMSC-037, \u00b6 23, 136 N.M. 561, 102 P.3d 628.\n{19} The Confrontation Clause of the Sixth Amendment provides that \u201c[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.\u201d U.S. Const. amend. VI. The Confrontation Clause bars the \u201cadmission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.\u201d Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); accord State v. Alvarez-Lopez, 2004-NMSC-030, \u00b6 21, 136 N.M. 309, 98 P.3d 699 (quoting Crawford). While declining to offer a \u201ccomprehensive definition of testimonial,\u201d the Crawford Court stated that at a minimum, the term applies to \u201cprior testimony at a preliminary hearing, before a grand jury, or at a formal trial; and to police interrogations.\u201d Crawford, 541 U.S. at 68, 124 S.Ct. 1354; accord State v. Johnson, 2004-NMSC-029, \u00b6 2, 136 N.M. 348, 98 P.3d 998 (quoting Crawford).\n{20} The State argues that the custodial statements of Father and Uncle fall outside of Crawford and do not implicate Defendant\u2019s right to confrontation. The State is correct in the assertion that not all police interrogations produce testimony. Since Crawford, the Supreme Court has clarified that police interrogations produce testimony when \u201cthe primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.\u201d Davis v. Washington, 547 U.S. 813,-, 126 S.Ct. 2266, 2269, 165 L.Ed.2d 224 (2006). In this case, the statements of Father and Uncle were elicited during a police interrogation that took place at the police station, hours after Baby Briana\u2019s death. Through their interrogation, police attempted to reconstruct the events that led to Baby Briana\u2019s death and obtain inculpatory statements from the eodefendants. Because the questioning of the codefendants constituted an attempt to \u201cprove past events potentially relevant to later criminal prosecution,\u201d id., we conclude that the statements of Father and Uncle are testimonial.\n{21} The testimonial statements of Father and Uncle were admitted at trial through the testimony of the interrogating officers. Father and Uncle did not testify at Defendant\u2019s joint trial and it is undisputed that Defendant did not have a prior opportunity to cross-examine Father or Uncle. Thus, the admission of these statements was clearly contrary to the Supreme Court\u2019s holding in Crawford. Therefore, the admission of Father\u2019s and Uncle\u2019s statements in this case is a \u201cper se\u201d violation of Defendant\u2019s Sixth Amendment right to confront the witnesses against her. See Johnson, 2004-NMSC-029, \u00b6 7, 136 N.M. 348, 98 P.3d 998 (\u201c[U]nder Crawford, because Defendant did not have an opportunity to cross-examine [the witness], the admission of [his] statement constituted a per se violation of Defendant\u2019s Sixth Amendment right of confrontation.\u201d).\nHarmless Error\n{22} Having decided that the admission of Father\u2019s and Uncle\u2019s statements constituted a violation of the Confrontation Clause, we must now determine whether this violation of Defendant\u2019s constitutional rights warrants reversal of her conviction. The State asserts that the Court of Appeals\u2019 reversal of Defendant\u2019s conviction was erroneous because any error regarding the admission of Father\u2019s and Uncle\u2019s statements was harmless. A violation of a defendant\u2019s constitutional right to confrontation may be deemed harmless if the State can establish that the constitutional error was \u201c \u2018harmless beyond a reasonable doubt.\u2019\u201d Alvarez-Lopez, 2004-NMSC-030, \u00b6 25, 136 N.M. 309, 98 P.3d 699 (quoting Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). In the case of constitutional error, the error may be deemed harmless if there is no \u201c \u2018reasonable possibility that the evidence complained of might have contributed to [the defendant\u2019s] conviction.\u2019\u201d Johnson, 2004-NMSC-029, \u00b6 9, 136 N.M. 348, 98 P.3d 998 (quoting Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).\n{23} We stated in Johnson that the reviewing court must examine several factors to determine whether a constitutional error may be considered harmless:\nThese factors include the importance of the witness\u2019 testimony in the prosecution\u2019s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution\u2019s case.\nId. \u00b6 11 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)). \u201cWe emphasizefd] that constitutional error must not be deemed harmless solely based on overwhelming evidence of the defendant\u2019s guilt; the overall strength of the prosecution\u2019s case is but one factor in our harmless-error analysis.\u201d Id.\n{24} In light of the above principles, we turn to the record in this case to determine whether the erroneous admission of codefendant\u2019s testimony was harmless beyond a reasonable doubt with respect to each of Defendant\u2019s convictions. See id. \u00b6 31. \u201cBecause our harmless-error analysis instructs that error may be prejudicial with respect to one conviction, but harmless with respect to another, we review the effect of [codefendant\u2019s] statement with respect to each conviction separately.\u201d Id. (quoting Clark v. State, 112 N.M. 485, 487, 816 P.2d 1107, 1109 (1991)).\nI. Negligently Permitting Child Abuse Resulting in Death or Great Bodily Harm\n{25} The charge of negligently permitting child abuse resulting in death or great bodily harm pertains to the injuries inflicted on Baby Briana in the last two days of her life. \u201cAbuse of a child consists of a person knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be ... placed in a situation that may endanger the child\u2019s life or health [or] tortured, cruelly confined or cruelly punished,\u201d resulting in the death of, or great bodily harm to, the child. Section 30-6-l(D); see also \u00a7 30-6-l(E)-(F). Under this theory, the State was required to prove in relevant part that: (1) Defendant permitted Baby Briana to be placed in a situation which endangered the life or health of Baby Briana or permitted Baby Briana to be tortured or cruelly punished; (2) Defendant acted intentionally or with reckless disregard; (3) Defendant was a parent, guardian or custodian of the child, or had accepted responsibility for the child\u2019s welfare; (4) Defendant\u2019s actions or failure to act resulted in the death of or great bodily harm to Baby Briana; and (5) this happened in New Mexico on or between July 18, 2002, and July 19, 2002. See UJI 14-603 NMRA (defining the elements of negligently permitting child abuse with bodily harm).\n{26} A review of Father\u2019s and Uncle\u2019s statements reveals that they are largely silent with regard to Defendant\u2019s actions or knowledge during the last two days of Baby Briana\u2019s life. Father and Uncle both stated that Defendant was in the room on the night of July 18, 2002, and Uncle stated that Defendant consumed five to six beers that night. In Defendant\u2019s statement to police she did not contradict Father\u2019s or Uncle\u2019s statements in any significant respect. Defendant told police that she was in the room \u2022with Father, Uncle, and Baby Briana, and that she fell asleep around 10:00 p.m. after drinking two to three beers. The statements given by Father and Uncle referred almost exclusively to their own conduct of throwing Baby Briana in the air and allowing her to fall to the floor and to sexually assaulting Baby Briana. In his interview with police, Father explicitly stated that Defendant was \u201cpassed out\u201d while Baby Briana was being thrown in the air:\nQ. When [Baby Briana] hit her head on the ceiling? Did she cry?\nA. Yeah.\nQ. What did Stephanie say?\nA. I don\u2019t even know, I don\u2019t even know if she was awake or no.\nQ. Did she pass out?\nA. She just passed out.\nLater in his interview with police, Father was questioned about Defendant\u2019s whereabouts on the night of July 18, 2002:\nQ. And where\u2019s your wife this whole time?\nA. She was there too.\nQ. Did she see it happen?\nA. She passed out.\nQ. She saw some of it happen because she told part of it, correct?\nA. She was passed out.\nQ. She was passed out? So the only ones awake were you, Briana and Steven? Yes or no?\nA. Yes, sir.\nFather and Uncle did not indicate in any way that Defendant participated in the abuse of Baby Briana in any way.\n{27} Considering the first of the Johnson harmless-error factors, the importance of the witness\u2019 testimony, Father\u2019s and Uncle\u2019s testimonial statements were not significantly damaging to Defendant. Father and Uncle merely placed Defendant in the room with Baby Briana on the night of her death, a fact Defendant admitted in her own statement to police. As to the second Johnson factor, the statements were essentially cumulative to Defendant\u2019s own admissible testimony. See Johnson, 2004-NMSC-029, \u00b638, 136 N.M. 348, 98 P.3d 998 (describing that \u201c[cumulative evidence is additional evidence of the same kind tending to prove the same points as other evidence already given\u201d). The only distinction between Defendant\u2019s version of events, and Father\u2019s and Uncle\u2019s description of Defendant\u2019s behavior, was the number of beers Defendant consumed. Defendant claimed she consumed two or three beers, while Uncle told police she drank five or six. As to the third factor articulated in Johnson, \u201cthe presence or absence of evidence corroborating or contradicting the testimony of the witness on material points,\u201d Defendant\u2019s own statement to police corroborated the statements of Father and Uncle. Regarding the fourth factor listed in Johnson, the extent of Defendant\u2019s opportunity to cross-examine Father or Uncle, Defendant did not have an occasion to cross-examine her codefendants, as neither testified at the joint trial.\n{28} Finally, as to the overall strength of the prosecution\u2019s case, a jury would have found support for each of the elements of negligently permitting child abuse merely by examining the physical evidence in this ease. The physical evidence admitted at trial established that Baby Briana suffered from three limb fractures, the subdural hematoma that killed her, fresh retinal bleeding, and dozens of bruises and bite marks all over her body. This evidence, coupled with Defendant\u2019s own statement placing her in the room with Baby Briana on the night the abuse occurred, provides overwhelming proof that Defendant negligently permitted child abuse, resulting in the death or great bodily harm of Baby Briana.\n{29} After examining each of the Johnson factors, the admission of Father\u2019s and Uncle\u2019s statements was harmless beyond a reasonable doubt as to Defendant\u2019s conviction for negligently permitting child abuse resulting in death or great bodily harm. Father and Uncle did not inculpate Defendant in any way with regard to their abuse of Baby Briana. The statements of Father and Uncle were merely additional evidence tending to prove what had already been demonstrated by physical evidence and Defendant\u2019s own testimony. Because the statements of Father and Uncle \u201cdid not serve to strengthen or corroborate the other evidence of guilt, we conclude [their] erroneous admission was harmless beyond a reasonable doubt with respect to [Defendant\u2019s] conviction\u201d for negligently permitting child abuse resulting in death or great bodily harm. Johnson, 2004-NMSC-029, \u00b6 53, 136 N.M. 348, 98 P.3d 998.\nII. Negligently Permitting Child Abuse Not Resulting in Death or Great Bodily Harm\n{30} The charge of negligently permitting child abuse not resulting in death or great bodily harm pertains to the injuries inflicted on Baby Briana prior to the injuries that caused her death. \u201cAbuse of a child consists of a person knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be ... placed in a situation that may endanger the child\u2019s life or health [or] tortured, cruelly confined or cruelly punished,\u201d not resulting in the child\u2019s death or great bodily harm. Section 30 \u2014 6\u20141(D); see also \u00a7 30-6-l(E). Under this theory, the State was required to prove in relevant part that: (1) Defendant permitted Baby Briana to be placed in a situation which endangered the life or health of Baby Briana or permitted Baby Briana to be tortured or cruelly punished; (2) Defendant acted intentionally or with reckless disregard; (3) Defendant was a parent, guardian or custodian of the child, or Defendant had accepted responsibility for the child\u2019s welfare; and (4) this happened in New Mexico on or between February 27, 2002, and July 19, 2002.\n{31} When we review the statements of Uncle and Father that might be relevant to the charge of negligently permitting child abuse not resulting in death or great bodily harm, we conclude that they are limited with regard to Defendant\u2019s actions or knowledge during the period of time between February 27, 2002, and July 19, 2002. Uncle makes no reference to Defendant\u2019s behavior prior to July 19, 2002, and Father\u2019s statement merely reiterates Defendant\u2019s own testimony to police. In his statement to police, Father admitted to throwing Baby Briana into the air with Baby Briana hitting her head on the ceiling four days before she died. He also admitted bruising Baby Briana, saying \u201cI didn\u2019t mean for it to leave a bruise like that. Like I left her a bruise like that before, just from messing with her. [Mother] gets mad.\u201d Defendant\u2019s statement to police echoed what Father said. Defendant told police that, a couple of days prior to Baby Briana\u2019s death, she saw Father throwing Baby Briana up in the air and allowing her to come down. Defendant said that she told Father to stop because he was going to hurt the child.\n{32} When we apply the Johnson factors to Father\u2019s testimony, we determine that the admission of Father\u2019s statement was harmless beyond a reasonable doubt as to Defendant\u2019s conviction for negligently permitting child abuse not resulting in death or great bodily harm. Father\u2019s statements were not particularly important to the prosecution\u2019s case because they conveyed very little information that was not provided in Defendant\u2019s own statement. Father\u2019s statement that he threw Baby Briana in the air and that Defendant knew he had bruised Baby Briana was cumulative in light of Defendant\u2019s own corroborative testimony that she had told Father to stop throwing Baby Briana because he was going to hurt her.\n{33} While Defendant did not have the opportunity to cross-examine Father, this factor is substantially outweighed by the physical evidence in this case. The physical evidence showed that Baby Briana suffered from two skull fractures that occurred 5-7 days before her death. These injuries would have manifested themselves in striking behavioral changes. Baby Briana also suffered from two fractured ribs that occurred during her fourth and fifth months of life, which would have made it very painful for Baby Briana to be picked up, and she suffered a brain hemorrhage weeks before her death, as shown by the traces of iron left by the blood as her body reabsorbed it. She was violently shaken weeks before her death, causing an old retinal hemorrhage. The physical injuries to Baby Briana provide overwhelming evidence to support the charge of negligently permitting child abuse. When this physical evidence, coupled with Defendant\u2019s statement, is weighed against Father\u2019s statement, we conclude that the erroneous admission of Father\u2019s statement was harmless beyond a reasonable doubt with respect to Defendant\u2019s conviction for negligently permitting child abuse not resulting in death or great bodily harm.\n{34} Finally, Defendant complains that Father\u2019s statement that Defendant would get mad at Baby Briana and pinch Baby Briana\u2019s ears and throw Baby Briana into her bouncy seat from a distance of about two feet was erroneously admitted at trial and contributed to her conviction. While we do find that the trial court erred in admitting this testimonial evidence without Defendant having the opportunity for cross-examination, we find this error was harmless. This statement supports the charge of intentional child abuse not resulting in great bodily harm. However, as to the charge of intentional child abuse, the jury found Defendant not guilty. Thus, this error was clearly harmless. See State v. Paul, 83 N.M. 619, 621, 495 P.2d 797, 799 (Ct.App.1972) (concluding that because the testimony of a witness who was not sequestered related only to charge of which defendant was acquitted, not charge of which defendant was convicted, any error in allowing witness to remain was harmless).\nCONCLUSION\n{35} We therefore reverse the Court of Appeals\u2019 decision to overturn Defendant\u2019s conviction and remand for a separate trial. We affirm Defendant\u2019s conviction and sentence.\n{36} IT IS SO ORDERED.\nWE CONCUR: PAMELA B. MINZNER and PATRICIO M. SERNA, Justices.\nEDWARD L. CH\u00c1VEZ, Chief Justice, and RICHARD C. BOSSON, Justice (concurring in part and dissenting in part).", "type": "majority", "author": "MAES, Justice." }, { "text": "CH\u00c1VEZ, Chief Justice\n(concurring in part, dissenting in part).\n{37} I concur in the majority\u2019s holding that Mother\u2019s Sixth Amendment right to confrontation was violated when, despite the fact that Mother had no opportunity to cross-examine her co-defendants, the trial court admitted her co-defendants\u2019 out of court statements made during police interrogations. Additionally, although I believe the trial court\u2019s failure to sever the trials of the defendants makes this an extremely close case as to whether the jury may have convicted Mother for illegitimate reasons, I join the majority in upholding Mother\u2019s conviction for negligently permitting child abuse not resulting in death or great bodily harm. Even if the statements from her co-defendants are not considered, Mother\u2019s own out-of-court statements, which were introduced to the jury, support the conclusion that the error in admitting the statements in violation of Mother\u2019s right of confrontation was harmless beyond a reasonable doubt. Mother\u2019s statements included an admission that on more than one occasion she observed both Father and Uncle toss the baby in the air, striking her head on the ceiling. She admitted having become angry with them for having done so and asking them to stop. These admissions, together with the medical evidence of abuse occurring days before the child\u2019s death, support a conclusion that the admission of the Father\u2019s and Uncle\u2019s statement was harmless error beyond a reasonable doubt.\n{38} However, I am not persuaded that the statements from Mother\u2019s co-defendants relating to the events of the night of the child\u2019s death did not contribute to Mother\u2019s conviction for negligently permitting child abuse resulting in death or great bodily harm. As such, I respectfully dissent and would remand to the trial court for a new trial on the count relating to child abuse resulting in death or great bodily harm.\n{39} Given the varying and somewhat confusing statements from the co-defendants, a jury might have drawn the reasonable inference that Mother was aware of the abuse on the night of the baby\u2019s death. For example, at one point, Father, in a statement denying any wrongdoing, said that he spent the night with Mother, the baby, and Uncle. When Father finally confessed to what he had done, he recounted that he threw the baby up in the air, striking her head on the ceiling, as did Uncle. When asked what Mother said when the baby was thrown up against the ceiling he replied \u201cI don\u2019t even know, I don\u2019t even remember if she was awake or not.\u201d Several minutes later, when he acknowledged that he continued throwing the baby in the air, he was asked, \u201cAnd where\u2019s your wife this whole time?\u201d His reply, \u201cShe was there, too.\u201d He later claimed Mother passed out and was asleep at the time of the abuse.\n{40} Uncle stated that on the night of the baby\u2019s death he was in the bedroom playing video games with Father and Mother. Although Mother consistently stated that she was asleep, not knowing the baby was being abused by Father and Uncle, the statements of the co-defendants are equivocal on this subject. Had Mother been afforded the opportunity to cross-examine her co-defendants, she may have been able to clarify whether everyone was in agreement that she was asleep and unaware of any abuse of the baby during the night preceding the child\u2019s death. Whether a jury would have convicted Mother based on uncontroverted evidence that she was asleep and unaware of the abuse taking place is not the issue. The issue is whether there is a reasonable possibility that the statements admitted in violation of the Sixth Amendment might have contributed to Mother\u2019s conviction.\n{41} The majority has interpreted the statements of Father and Uncle as \u201clargely silent with regard to [Mother\u2019s] actions or knowledge during the last two days of [the baby\u2019s] life,\u201d and as not making \u201cany reference to [Mother\u2019s] awareness of [their] activities.\u201d Maj. Op. \u00b6 26. While this is certainly a reasonable interpretation of their statements, the jury also heard Father, at one point, say he did not know whether Mother was asleep, and, at another point, state that she was there while he was tossing the child against the ceiling. The Court of Appeals in describing Father\u2019s statement wrote, \u201cFather\u2019s statement not only corroborates Mother\u2019s, [Father] specifically adds that he and Uncle made Baby hit the ceiling and dropped her onto the floor while they were throwing her and that Mother knew it.\u201d State v. Walters, 2006-NMCA-071, \u00b6 41, 139 N.M. 705, 137 P.3d 645. The State contends that this description by the Court of Appeals is misleading because the implication that \u201cmother knew\u201d father was throwing the baby at the time he was doing so, is false. Indeed, argues the State, Father\u2019s statement was an attempt to establish an alibi for Mother, seemingly conceding the exculpatory value of Mother not being aware of Father\u2019s actions because she was asleep or passed out. By contrast, an interpretation of Father\u2019s statement, without the benefit of cross-examination, which leads to a finding that Mother was aware of the abuse taking place, is inculpatory evidence.\n{42} Although I might interpret the statement more in line with the State\u2019s interpretation, the equivocal nature of the statement is for the jury to interpret and weigh. A reasonable jury may have accepted the portion of Father\u2019s statement where he said he did not know whether Mother was awake and that Mother was there while he tossed the baby in the air, and have rejected any statement that she was passed out or asleep. Certainly such a reasonable inference or interpretation of the statement would contribute to a guilty verdict.\n{43} The focus of harmless error analysis is \u201cwhether there is a reasonable possibility the erroneous evidence might have affected the jury\u2019s verdict.\u201d State v. Johnson, 2004-NMSC-029, \u00b6 11, 136 N.M. 348, 98 P.3d 998. We must be able to determine, beyond a reasonable doubt, that the jury verdict would have been the same had the constitutional error not occurred. Id. \u00b6 9.\n[A] reviewing court [must] be guided not by its own assessment of the guilt or innocence of the defendant \u2014 a matter which is irrelevant to the question whether the constitutional error might have contributed to the jury\u2019s verdict \u2014 but rather by an objective reconstruction of the record of evidence the jury either heard or should have heard absent the error and a careful examination of the error\u2019s possible impact on that evidence.\nId. \u00b6 10. In my judgment, the statements of the co-defendants allow a reasonable inference that Mother was aware of the abuse the night of the child\u2019s death. Therefore, I conclude that there is a reasonable possibility that the evidence complained of might have contributed to Mother\u2019s conviction.\n{44} The prosecution vigorously resisted severance in this case. I conclude my analysis of this issue by reiterating what we wrote in State v. Gutierrez:\nThe zeal ... of some prosecuting attorneys, tempts them to an insistence upon the admission of incompetent evidence, or getting before the jury some extraneous fact supposed to be helpful in securing a verdict of guilty.... When the error is exposed on appeal, it is met by the stereotyped argument that it is not apparent it in any wise influenced the minds of the jury. The reply the law makes to such suggestion is: that, after injecting it into the case to influence the jury, the prosecutor ought not to be heard to say, after he has secured a conviction, it was harmless---[T]he presumption is to be indulged, in favor of the liberty of the citizen, that whatever the prosecutor, against the protest of the defendant, has laid before the jury, helped to make up the weight of the prosecution which resulted in the verdict of guilty.\n2007-NMSC-033, \u00b624, 142 N.M. 1, 162 P.3d 156 (2007) (quoting State v. Frank, 92 N.M. 456, 460, 589 P.2d 1047, 1051 (1979)).\n{45} I would reverse Mother\u2019s conviction for negligent child abuse resulting in death or great bodily harm and grant her a new trial. The majority concluding otherwise, I respectfully dissent.\nI CONCUR: RICHARD C. BOSSON, Justice.", "type": "concurring-in-part-and-dissenting-in-part", "author": "CH\u00c1VEZ, Chief Justice" } ], "attorneys": [ "Gary King, Attorney General, Joel Jacob-sen, Assistant Attorney General, Santa Fe, NM, for Petitioner.", "Liane E. Kerr, Liane E. Kerr, L.L.C., Albuquerque, NM, for Respondent." ], "corrections": "", "head_matter": "2007-NMSC-037\n164 P.3d 19\nSTATE of New Mexico, Plaintiff-Petitioner, v. Stephanie LOPEZ, Defendant-Respondent.\nNo. 29,803.\nSupreme Court of New Mexico.\nJune 21, 2007.\nGary King, Attorney General, Joel Jacob-sen, Assistant Attorney General, Santa Fe, NM, for Petitioner.\nLiane E. Kerr, Liane E. Kerr, L.L.C., Albuquerque, NM, for Respondent." }, "file_name": "0138-01", "first_page_order": 170, "last_page_order": 182 }