{ "id": 3693071, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Juan SILVA, Defendant-Appellant", "name_abbreviation": "State v. Silva", "decision_date": "2007-06-26", "docket_number": "No. 24,273", "first_page": "686", "last_page": "699", "citations": [ { "type": "official", "cite": "142 N.M. 686" }, { "type": "parallel", "cite": "168 P.3d 1110" }, { "type": "parallel", "cite": "2007-NMCA-117" } ], "court": { "name_abbreviation": "N.M. Ct. 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{ "page": "131-32" } ], "opinion_index": 0, "case_paths": [ "/us/391/0123-01" ] }, { "cite": "115 N.M. 27", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725481 ], "weight": 2, "pin_cites": [ { "page": "34" }, { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0027-01" ] }, { "cite": "2006-NMSC-035", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3670050 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 13" }, { "page": "\u00b6 13" }, { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0094-01" ] }, { "cite": "128 P.3d 754", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2005-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2548768 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/138/0521-01" ] }, { "cite": "443 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182418 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/us/443/0307-01" ] }, { "cite": "2001-NMCA-020", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352252 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0381-01" ] }, { "cite": "2004-NMSC-029", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224656 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 52" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0348-01" ] }, { "cite": "2000-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106493 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0711-01" ] }, { "cite": "107 N.M. 126", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597058 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "131" }, { "page": "1319" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0126-01" ] }, { "cite": "2005-NMCA-119", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2548929 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 2" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0459-01" ] }, { "cite": "99 N.M. 106", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584639 ], "weight": 2, "pin_cites": [ { "page": "108" }, { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0106-01" ] }, { "cite": "405 U.S. 150", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11721534 ], "weight": 3, "year": 1972, "pin_cites": [ { "page": "155", "parenthetical": "\"[E]vidence of any understanding or agreement as to a future prosecution would be relevant to [the witness's] credibility and the jury was entitled to know of it.\"" }, { "parenthetical": "\"[E]vidence of any understanding or agreement as to a future prosecution would be relevant to [the witness's] credibility and the jury was entitled to know of it.\"" }, { "parenthetical": "\"[E]vidence of any understanding or agreement as to a future prosecution would be relevant to [the witness's] credibility and the jury was entitled to know of it.\"" } ], "opinion_index": 0, "case_paths": [ "/us/405/0150-01" ] }, { "cite": "475 U.S. 673", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6207521 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "684" } ], "opinion_index": 0, "case_paths": [ "/us/475/0673-01" ] }, { "cite": "2004-NMSC-030", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224666 ], "weight": 12, "pin_cites": [ { "page": "\u00b6 25" }, { "page": "\u00b6 6" }, { "page": "\u00b6 16" }, { "page": "\u00b6 23" }, { "page": "\u00b6 23" }, { "page": "\u00b6\u00b6 16, 22" }, { "page": "\u00b6 16" }, { "page": "\u00b6 17" }, { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0309-01" ] }, { "cite": "723 F.2d 1165", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1914368 ], "weight": 2, "pin_cites": [ { "page": "1170" }, { "page": "1171" } ], "opinion_index": 0, "case_paths": [ "/f2d/723/1165-01" ] }, { "cite": "936 F.2d 492", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10525191 ], "pin_cites": [ { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/f2d/936/0492-01" ] }, { "cite": "415 U.S. 308", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174956 ], "weight": 7, "year": 1974, "pin_cites": [ { "page": "318" }, { "page": "318" }, { "page": "317-18" } ], "opinion_index": 0, "case_paths": [ "/us/415/0308-01" ] }, { "cite": "118 N.M. 762", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563621 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "770", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "764", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0762-01" ] }, { "cite": "117 N.M. 452", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552789 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "460", "parenthetical": "\"[T]he trial court [has] discretion to limit cross-examination in the interest of insuring [sic] a fair and efficient trial.\"" }, { "page": "878", "parenthetical": "\"[T]he trial court [has] discretion to limit cross-examination in the interest of insuring [sic] a fair and efficient trial.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0452-01" ] }, { "cite": "45 P. 1107", "category": "reporters:state_regional", "reporter": "P.", "year": 1896, "pin_cites": [ { "page": "1110" } ], "opinion_index": 0 }, { "cite": "8 N.M. 528", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4664792 ], "year": 1896, "pin_cites": [ { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/nm/8/0528-01" ] }, { "cite": "100 N.M. 470", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588547 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "471" }, { "page": "644" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0470-01" ] }, { "cite": "105 N.M. 82", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598930 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "83", "parenthetical": "holding that it is contrary to New Mexico law for a witness to be immunized against any liability for perjury arising from his testimony at trial" }, { "page": "834", "parenthetical": "holding that it is contrary to New Mexico law for a witness to be immunized against any liability for perjury arising from his testimony at trial" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0082-01" ] }, { "cite": "1999-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106492 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 25" }, { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0044-01" ] }, { "cite": "86 N.M. 2", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2827719 ], "weight": 2, "pin_cites": [ { "page": "4" }, { "page": "963" } ], "opinion_index": 0, "case_paths": [ "/nm/86/0002-01" ] }, { "cite": "91 N.M. 745", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571008 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "747", "parenthetical": "reversing conviction for contempt against witness for refusing to testify under grant of immunity when procedural requirements for immunity have not been met" }, { "page": "968", "parenthetical": "reversing conviction for contempt against witness for refusing to testify under grant of immunity when procedural requirements for immunity have not been met" } ], "opinion_index": 0, "case_paths": [ "/nm/91/0745-01" ] }, { "cite": "84 N.M. 312", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2764879 ], "weight": 4, "year": 1972, "pin_cites": [ { "page": "313", "parenthetical": "\"District Attorneys in New Mexico, it is true, have no power to grant immunity from prosecution to any witness.\"" }, { "page": "1003", "parenthetical": "\"District Attorneys in New Mexico, it is true, have no power to grant immunity from prosecution to any witness.\"" }, { "page": "314" }, { "page": "1004", "parenthetical": "holding that the prosecutor's agreement not to prosecute in exchange for testimony was enforceable by defendant" } ], "opinion_index": 0, "case_paths": [ "/nm/84/0312-01" ] }, { "cite": "1999-NMCA-053", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257608 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0189-01" ] }, { "cite": "122 N.M. 476", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322262 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/122/0476-01" ] }, { "cite": "1996-NMCA-109", "category": "reporters:neutral", "reporter": "NMCA", "weight": 6, "pin_cites": [ { "page": "\u00b6 9" }, { "page": "\u00b6 11" }, { "page": "\u00b6 17" }, { "page": "\u00b6 14" }, { "page": "\u00b6 19" } ], "opinion_index": 0 }, { "cite": "121 N.M. 481", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566706 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/121/0481-01" ] }, { "cite": "1996-NMCA-031", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1620, "char_count": 46139, "ocr_confidence": 0.668, "pagerank": { "raw": 6.3481576981566e-08, "percentile": 0.38948622101134084 }, "sha256": "174beff0493db306316e9c0a382e5d57f71db4041b05083657d64f299a214418", "simhash": "1:9805ee3eef29966f", "word_count": 7493 }, "last_updated": "2023-07-14T22:28:07.264738+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: MICHAEL D. BUSTAMANTE and CYNTHIA A. FRY, Judges." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Juan SILVA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nKENNEDY, Judge.\n{1} Defendant Juan Silva appeals his convictions for second-degree murder, conspiracy to commit second-degree murder, and tampering with evidence. We reverse his conviction for tampering with evidence as unsupported by substantial evidence. We affirm the district court\u2019s ruling that the hearsay statement of a co-defendant was admissible as a statement against penal interest. Last, we hold that the district court\u2019s refusal to allow cross-examination of a State witness, Bobby Salas (Salas), concerning perjury and the State\u2019s agreement not to prosecute him when his trial testimony varied from testimony he gave at a deposition, was not harmless error. We remand for a new trial.\nFACTS AND BACKGROUND\n{2} During the late night of August 30, 2001, and the early morning hours of August 31, Mario Hernandez (Decedent) was killed by a single gunshot to the back of his head at an apartment occupied by Salas. Starting with his first contact with police, Salas gave numerous conflicting statements, some occurring under oath at a deposition. From statement to statement, Salas admittedly lied about the circumstances of the shooting, his actions at the time of the incident, whether or not he actually heard a gunshot, the circumstances of his return to his apartment, how he came to identify participants in the incident, his conversations to police, and his deposition testimony. It is not an exaggeration to state that Salas was a remarkably inconsistent historian. He was, however, the closest thing to an eyewitness to the murder for the State.\n{3} When Salas\u2019s statements are boiled down, the evidence suggests that Salas opened his front door to a young man asking for Decedent. That young man and anywhere from six to eight companions then forced them way into the apartment. A scuffle may or may not have ensued with Decedent. Salas heard Decedent say, \u201c[n]o, Na-nos, no\u201d before Defendant began punching him. Defendant is known as \u201cNanos.\u201d Salas took off running about this time, and testified that he may have heard a shot before he fled the apartment to a nearby motel for help. Salas told police that he did not know who did the shooting and could not pick Defendant or his co-defendants out of a photo array, although he later identified Defendant and one of his co-defendants at trial.\n{4} The day after the shooting, Salas called the police to tell them that some unknown person had slipped pictures of Defendant and two co-defendants under his door, which was a lie. He identified the persons in the pictures as persons who had participated in the shooting. At his deposition, Salas said he did not know the source of the photographs. However, he admitted at trial that this was a lie, and named two young women as the source, including another of the State\u2019s witnesses, Veronica Castro (Castro). Defendant\u2019s counsel alerted the court to Salas\u2019s apparent perjury. In a hearing outside the presence of the jury, with Salas present on the witness stand, the prosecutor stated that he had no intention of prosecuting Salas for perjury. The district court ruled that Defendant could not cross-examine Salas on either the perjury or the statement by the prosecutor that the State did not intend to pursue perjury charges.\n{5} Fifteen-year-old Castro testified that co-defendant Joseph Silva (Joseph) had come to her the night of the shooting and told her that he had shot Decedent. There is some dispute as to the source and timing of a second related statement, which Castro\u2019s testimony indicates came in a later telephone call from Joseph to Castro, that Defendant had told him to shoot Decedent. These statements were admitted by the district court as evidence over Defendant\u2019s objection, citing the exception to the hearsay rule allowing admission of statements against interest. Other facts will be included during the discussion as necessary.\nDISCUSSION\n{6} There are three issues discussed in this appeal: (1) whether the district court erred in admitting hearsay statements in which co-defendant Joseph also implicated Defendant through Castro, (2) whether the district court erred in refusing to allow Defendant to cross-examine Salas about the State\u2019s promise not to prosecute him for perjury, and (3) whether there was sufficient evidence to support Defendant\u2019s conviction for tampering with evidence.\nThe District Court\u2019s Ruling Limiting Salas\u2019s Testimony and Cross-Examination\n{7} As a witness to a murder, Salas was a singularly bad historian. Salas had given at least two statements to police about the murder in his house and its perpetrators, which had significant inconsistencies. Salas was the only witness who testified about who came into his house and fought with Decedent. He failed to identify any of the defendants from photo arrays immediately following the incident, even though their photographs were included in the arrays and he later identified them in a police interview and at trial. He identified the defendants only after Castro and her friend came to his house and showed him pictures of the persons they believed were involved-pictures including Defendant. Salas lied under oath at his deposition about the manner in which he had seen those pictures.\n{8} In his deposition, which was taken before the district court with the judge present, he admitted having lied to the police concerning the time of the incident, where he was, with whom, and his actions during and after the murder. Salas testified variously that he had never heard Defendant\u2019s nickname \u201cNanos\u201d prior to Decedent saying \u201c[n]o, Nanos, no\u201d during the incident, but then testified that two or three days before the shooting he had overheard a telephone conversation in which Decedent told someone named \u201cNanos\u201d that he would \u201ckick his ass\u201d and \u201che was going to blow his head off.\u201d On the stand at trial as a witness for the State, Salas admitted that he had lied in his deposition.\n{9} Just prior to cross-examination, defendant Michael Gonzales\u2019s attorney, who was the lead defense attorney for purposes of Salas\u2019s cross-examination brought to the court\u2019s attention that Salas was about to admit that he had lied in a sworn deposition. In a discussion concerning whether Salas should be Mirandized or given counsel, the prosecutor stated, \u201cI don\u2019t plan on going after him on any perjury charges, and I can let him know right now that we are not going to do that.\u201d Later, when confronted with an argument that immunity for perjury is beyond the capability of the State, the prosecutor said:\nI think the State can offer use immunity on anything they want to, as long as it meets the [cjourt\u2019s approval. We have a murder case. That\u2019s small potatoes in my mind to what we need to do to find the truth. I will state on the record that he will not be prosecuted and we will offer use immunity.\nThe district court took a recess and returned. At that time, the State maintained that perjury was not involved, and that once a witness had been immunized, they could be charged with perjury if they testified falsely while immunized. The State\u2019s theory was that the perjury dealt with Salas\u2019s lying about the source of the photographs, which was not material to the charges before the court. After further discussion, the State reiterated its position that Salas had not perjured himself on anything material: \u201cThat wasn\u2019t even before a jury at the time. Now we are before a jury. Now he needs to be truthful. I mean, that\u2019s why we don\u2019t see perjury charges by the D.A.\u2019s office, because of that statute.\u201d Defendant\u2019s attorney responded,\nThat flies in the face of the oath. It was a formal deposition before the [cjourt. Of what use is there for giving oaths to witnesses at depositions if they can lie and well, now we can make it up or something. I\u2019m not sure I follow the State\u2019s analysis.\n{10} The court declined to grant immunity to Salas, but advised him that: \u201c[IJf in the last proceeding you intentionally made any false misstatements or knowingly made any misstatements that you knew were false, that you have a right to bring that to my attention and we will address it without you answering any questions regarding that.\u201d The Court went further:\nAnd I would preclude the State from inquiring as to whether he intentionally or knowingly made any misstatements. I\u2019m not talking about inconsistencies, but I think that the key here is knowing misstatements, and if we get into that area, I think that Mr. Salas does have a right\u2014 and we will discuss it at that point____I preclude the State from going into questions about whether he knowingly made statements falsely under oathf.j\nThe district court forbade the defense from making a record before the jury, and warned Salas: \u201cLet me make a record that Mr. Salas, you are under oath. Anything you falsely say in court today, if you knew it to be false when you say it, is subject to prosecution for perjury so you understand that, that you have to tell the truth today.\u201d Salas acknowledged that he understood. Salas then testified that he had not been promised anything for his testimony.\n{11} The cross-examination subsequently began with a bench conference in which the defense asked the district court for guidance concerning their use of the State\u2019s representation that they did not intend to prosecute Salas for perjury. The district court ruled that it would not impede vigorous cross-examination about untrue statements under oath, but then stated:\nI think that the key here is whether \u2014 if the State promised him something to come in, I think that\u2019s a little different. I see a difference. I wouldn\u2019t allow going into that particular area that the State offered him immunity to testify, and it wouldn\u2019t be true. They may have offered it, but the [c]ourt didn\u2019t grant it, so I think that area is still out of bounds. Any inconsistent statements are in bounds.\n{12} After the State declared, in front of Salas, that it would not prosecute him for perjury, Salas twice testified in response to the State\u2019s questions that he had received no promises or benefits for his testimony. It is the subject of these exchanges concerning Salas\u2019s false testimony and the State\u2019s promise of immunity that Defendant now asserts he should have been allowed to raise on cross-examination.\n{13} The State argues that the limitation was not unduly burdensome for the following reasons: (1) Salas did not commit perjury, and (2) the State did not offer Salas formal immunity from prosecution for perjury. Defendant argues that the limitation of cross-examination, especially for a key prosecution witness like Salas, violated his constitutional rights because the jury was not able to draw its own conclusions based on the reliability of Salas\u2019s testimony. Defendant further argues that the district court\u2019s ruling was not harmless error, particularly when considered in conjunction with the limitation of cross-examination on Salas\u2019s past convictions for second degree murder.\n{14} \u201cThe Sixth Amendment to the United States Constitution provides that, in criminal prosecutions, the accused shall have the right to confront the witnesses against him.\u201d State v. Casaus, 1996-NMCA-031, \u00b6 22, 121 N.M. 481, 913 P.2d 669. The Confrontation Clause is applied to the states through the Fourteenth Amendment. State v. Martinez, 1996-NMCA-109, \u00b6 9, 122 N.M. 476, 927 P.2d 31.\n{15} We first address the State\u2019s argument that Defendant\u2019s Sixth Amendment Confrontation Clause claim was not preserved. The State posits that Defendant was not specific enough in his objections to the district court to preserve the issue for appellate review. In order to preserve a question for review, \u201cit must appear that a ruling or decision by the district court was fairly invoked.\u201d Rule 12-216(A) NMRA. When arguments are \u201cadequate to alert the trial court to the basis for [djefendant\u2019s proffer,\u201d we consider the argument preserved. Martinez, 1996-NMCA-109, \u00b6 11 (internal quotation marks and citation omitted). Defendant\u2019s offer to the judge in the district court was that the \u201clies\u201d told by Salas were material to the case, and that those \u201clies\u201d went \u201cdirectly to [Salas\u2019s] credibility.\u201d The discussion regarding Salas\u2019s testimony about his perjury went on for some time before the district court judge. We hold that the district court was sufficiently alerted to the potential error and that counsel obtained an intelligent and informed ruling, thereby preserving the Confrontation Clause issue for appeal. Id. \u00b6 12.\n{16} We now turn to the substantive issues. First, we hold that the issues surrounding Salas\u2019s identification of Defendant were material. \u201cA statement is material if it has a natural tendency to influence or the capability to influence the decision of the decision-making body to which it is addressed.\u201d State v. Benavidez, 1999-NMCA-053, \u00b6 26, 127 N.M. 189, 979 P.2d 234. Despite being shown photo arrays including defendants immediately after the crime on at least two occasions, Salas, who had told police that he was \u201cface-to-face\u201d with the persons who barged into his house, was unable to identify any of the defendants, and in fact incorrectly identified a person who was not involved in the crime. It was only after the young women took photographs to his house, discussed with him and showed him pictures of the defendants, that he called the police with his concocted story and thereafter identified the defendants. There were inconsistencies in his descriptions of Defendant throughout his statements. Salas\u2019s ability to identify Defendant is most material to his guilt, and any outside coaching or assistance Salas received in coming to his eventual identification bears on a material fact in the case and would itself be material to his credibility and an element of the offense that is essential to the outcome of the proceeding. Hence, any lies he told about how he came to his identification of Defendant are material to the issues on trial.\n{17} Second, we hold that no immunity under the applicable rule of court was conferred, since a district attorney alone is powerless to grant immunity from prosecution to any witness, see Rule 5-116 NMRA; State ex rel. Plant v. Sceresse, 84 N.M. 312, 313, 502 P.2d 1002, 1003 (1972) (\u201cDistrict Attorneys in New Mexico, it is true, have no power to grant immunity from prosecution to any witness.\u201d), and such a grant requires fulfilling specific procedural requirements and obtaining judicial consent. See Campos v. State, 91 N.M. 745, 747, 580 P.2d 966, 968 (1978) (reversing conviction for contempt against witness for refusing to testify under grant of immunity when procedural requirements for immunity have not been met).\n{18} This is not to say, however, that the State did not represent in open court that it would not pursue Salas for any perjury, nor that such a representation would not be binding on the State should Salas have later been charged with perjury as a result of his testimony. Sceresse, 84 N.M. at 314, 502 P.2d at 1004 (holding that the prosecutor\u2019s agreement not to prosecute in exchange for testimony was enforceable by defendant); State v. Plant, 86 N.M. 2, 4, 518 P.2d 961, 963 (Ct.App.1973) (holding that statements by prosecutor to court that a witness\u2019s statements would not be used against him in any prosecution had effect of binding admission by State). But for the representations of the \u25a0 prosecutor at trial, Salas had a \u201creasonable expectation of future and continuing dealing with the State as an adverse party.\u201d State v. Gonzales, 1999-NMSC-033, \u00b6 25, 128 N.M. 44, 989 P.2d 419.\n{19} It is impossible to tell what testimony the State was intending to give the witness immunity on: his deposition testimony or the testimony proffered on the stand; either excludes the other. In essence, it would be fair to view immunity as essentially giving Salas a free ride for any false statements under oath that were given at trial, since it is his trial testimony that was sought to be protected by the State. See State v. Summerall, 105 N.M. 82, 83, 728 P.2d 833, 834 (1986) (holding that it is contrary to New Mexico law for a witness to be immunized against any liability for perjury arising from his testimony at trial). Implicit in any grant of immunity is the condition that the witness testify truthfully or be subject to prosecution for perjury or contempt. State v. Boeglin, 100 N.M. 470, 471, 672 P.2d 643, 644 (1983). In the case before us, we can presume that the State was offering Salas\u2019s testimony at trial as his \u201ctrue\u201d testimony, knowing full well that it directly contradicted his previous sworn deposition in many respects.\n{20} A full and vigorous cross-examination of Salas at trial, including inquiring as to both the material discrepancies with his deposition testimony and his motivations for changing his stories at trial, would be required to comport with due process and Defendant\u2019s rights under the Sixth Amendment. Fairness demands a full exposition of the inducements for testimony provided to the witness. \u201c[T]he jury should be instructed ... that they should consider the inducements and influences of hope, or promises, under which such testimony is given.\u201d Territory v. Chavez, 8 N.M. 528, 538, 45 P. 1107, 1110 (1896). Bias and a motive to fabricate, even when evidence of a deal is absent, should be presented to a jury for its consideration in judging a witness\u2019s credibility. Martinez, 1996-NMCA-109, \u00b6 17. A jury should also be able to take into consideration whether a witness \u201choped to curry favor by cooperating with the prosecution.\u201d Id.\n{21} There are two levels of scrutiny in which we engage concerning the scope of cross-examination at play in this case. Ordinarily, we review a trial court\u2019s ruling on the scope of cross-examination for an abuse of discretion. State v. Sanders, 117 N.M. 452, 460, 872 P.2d 870, 878 (1994) (\u201c[T]he trial court [has] discretion to limit cross-examination in the interest of insuring [sic] a fair and efficient trial.\u201d). We only find an abuse of discretion when \u201cthe ruling is clearly against the logic and effect of the facts and circumstances of the case.\u201d State v. Apodaca, 118 N.M. 762, 770, 887 P.2d 756, 764 (1994) (internal quotation marks and citation omitted). However, when a cross-examination is unduly limited by the district court, a constitutional error results. Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). We review de novo whether the limitation was a violation of the Confrontation Clause. United States v. Ellzey, 936 F.2d 492, 495 (10th Cir.1991); Martinez, 1996-NMCA-109, \u00b6 14. We examine the district court\u2019s ruling to determine whether the limitation the district court placed on the cross-examination violated defendant\u2019s rights, and if error, whether it was sufficiently harmful and prejudicial so as to merit reversal. Martinez, 1996-NMCA-109, \u00b6 19 (\u201c[Constitutional errors are subject to a harmless error analysis.\u201d).\n{22} Early on in his cross-examination, Salas testified that he had not been offered anything in exchange for his trial testimony. This statement passed without objection or a request for a bench conference by the defense team. Although he specifically admitted giving false sworn testimony at his deposition on more than one occasion during cross-examination by the various defense attorneys, he was not cross-examined concerning whether he had been promised a free ride from perjury charges, nor was the matter pressed. At the end of re-direct, he stated that he had received no benefit in exchange for testifying. Again, no defendant objected. Salas stated on a number of occasions that he was telling the truth on the stand, irrespective of his previous statements.\n{23} The Supreme Court has applied the harmless error rule in cases dealing with violations of the Confrontation Clause. Davis, 415 U.S. at 318, 94 S.Ct. 1105; Carrillo v. Perkins, 723 F.2d 1165, 1170 (5th Cir.1984) (\u201c[W]e have repeatedly applied the harmless-error rule in decisions finding violations of the right of effective cross-examination.\u201d). If a violation of the Confrontation Clause occurred, it does not necessarily result in a new trial if the error was harmless beyond a reasonable doubt. Perkins, 723 F.2d at 1171. \u201cFederal constitutional error cannot be deemed harmless if there is a reasonable possibility that the evidence complained of might have contributed to the conviction.\u201d State v. Alvarez-Lopez, 2004-NMSC-030, \u00b6 25, 136 N.M. 309, 98 P.3d 699 (internal quotation marks and citations omitted). In order to determine whether a constitutional error was harmless beyond a reasonable doubt, we consider: \u201cthe 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.\u201d Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).\n{24} In this ease, Salas\u2019s testimony was important, if not crucial, to the State\u2019s case. Salas\u2019s credibility was an important issue in the case, and the jury was entitled to hear about any evidence relevant to his credibility, including an agreement, or \u201cunderstanding\u201d that he would not be prosecuted for perjury. See Giglio v. United States, 405 U.S. 150, 155, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (\u201c[E]vidence of any understanding or agreement as to a future prosecution would be relevant to [the witness\u2019s] credibility and the jury was entitled to know of it.\u201d). The district court ruled that there was to be a complete bar into any inquiry of an agreement or understanding between Salas and the State. The fact that the district court based its view on the notion that the offer of immunity had not been made until Salas was already on the stand, and that the district court had not ordered that immunity be conferred is understandable, but we must take another view. The question of immunity arose as Salas was contradicting his previous sworn testimony \u2014 an occurrence we presume was not subject to the State\u2019s prescience. Although the district court allowed Defendant wide latitude on cross-examination, it did not allow any cross-examination in the area of the understanding between the State and the witness. Even though the witness was not a \u201cparolee or a suspect,\u201d State v. Baldizan, 99 N.M. 106, 108, 654 P.2d 559, 561 (Ct.App.1982), or a probationer or possible suspect, see Davis, 415 U.S. at 317-18, 94 S.Ct. 1105, who was making an explicit deal with the State for his testimony, he had perjured himself, either at his deposition or on the stand. The heart of the matter is not whether a deal was actually made, but whether the jury could infer bias or a motivation to fabricate in order to either strike a deal with the State or to curry a favor with the State by cooperation during the trial had the jury known the State had made a promise.\n{25} The State\u2019s offer to immunize Salas against prosecution for perjury would likely have been enforceable against the State, and the very fact that during Salas\u2019s testimony it represented to the district court that it had no intention of pursuing any sworn falsehoods was certainly a matter worthy of inquiry by a defense team that was interested in demonstrating Salas\u2019s bias or motives to testify. For the district court to exclude such a topic from the reach of the defense\u2019s purview was error. Because of the nature of the witness and the importance of his testimony, we hold that the error was not harmless, and it compels a reversal of Defendant\u2019s convictions.\nTampering With Evidence\n{26} Defendant contends there was insufficient evidence to support his conviction for tampering with evidence. We address this argument because Defendant would be entitled to dismissal, instead of retrial, if the evidence at trial were insufficient to support his conviction. State v. Jojota, 2005-NMCA-119, \u00b6 2, 138 N.M. 459, 122 P.3d 43.\n{27} The State\u2019s evidence consists only of Salas\u2019s testimony that Defendant had at one time held a gun during the incident. In determining whether there was sufficient evidence; we look to whether there was substantial evidence \u201cof either a direct or circumstantial nature ... to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.\u201d State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). We also view evidence in the light most favorable to the guilty verdict, \u201cindulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.\u201d State v. Cunningham, 2000-NMSC-009, \u00b6 26, 128 N.M. 711, 998 P.2d 176.\n{28} In order for Defendant to be found guilty of tampering with evidence, the State must establish two things: (1) Defendant destroyed, changed, hid, placed, or fabricated physical evidence; and (2) \u201cDefendant intended to prevent his apprehension, prosecution or conviction.\u201d State v. Johnson, 2004-NMSC-029, \u00b6 52, 136 N.M. 348, 98 P.3d 998; NMSA 1978, \u00a7 30-22-5(A) (2003). \u201cTo support a conviction under a beyond a reasonable doubt standard, the evidence and inferences drawn from that evidence must be sufficiently compelling so that a hypothetical reasonable factfinder could have reached \u2018a subjective state of near certitude of the guilt of the accused.\u2019\u201d State v. Wynn, 2001-NMCA-020, \u00b6 5, 130 N.M. 381, 24 P.3d 816 (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).\n{29} The State\u2019s argument regarding Defendant\u2019s conviction for tampering with evidence is succinct: Decedent was killed with a gun, Defendant possessed a gun, which \u201cwas physical evidence of the murder,\u201d and the gun was never recovered. Therefore, the State argues, Defendant is guilty of tampering with evidence. We can find no evidence beyond the fact that Defendant may have held a gun. No evidence establishes that this gun was \u201cphysical evidence of the murder.\u201d At trial, the State neglected to point to Salas\u2019s testimony indicating that it looked as if \u201cthe other guys were reaching for a gun or something\u201d at the time he ran from his apartment.\n{30} The State argues that this issue is controlled by State v. Lopez, 2005-NMSC-036, 138 N.M. 521, 128 P.3d 754. We disagree. This ease is not analogous to Lopez. In Lopez, the defendant admitted to throwing a gun into the woods. Admitting both his possession of the gun and the act of throwing it away led the Court to state that \u201c[t]he jury could infer that [the defendant] committed these acts to avoid apprehension.\u201d Id. \u00b6 22. In this case, there is no evidence as to what happened to the gun after the murder. The State\u2019s only evidence that Defendant possibly tampered with evidence is that the police could not find or recover a gun Defendant possessed.\n{31} The State\u2019s argument fails twice. We hold that the fact that a person once held a weapon at a murder scene that was not recovered \u2014 the extent of the evidence in this case \u2014 is no basis from which to infer that Defendant acted to destroy or hide physical evidence of a crime with the intent to \u201cprevent the apprehension, prosecution or conviction of [himself].\u201d UJI 14-2241 NMRA; see State v. Duran, 2006-NMSC-035, \u00b6 13, 140 N.M. 94, 140 P.3d 515. It must also be proven that Defendant undertook some activity with the requisite intent. Duran, 2006-NMSC-035, \u00b6 13; see State v. Roybal, 115 N.M. 27, 34, 846 P.2d 333, 340 (Ct.App.1992). What the State suggests we regard as the jury\u2019s \u201cinference\u201d that an act took place, our Supreme Court instructed us in Duran to regard as \u201cspeculation.\u201d Duran, 2006-NMSC-035, \u00b6 15. Because speculation will not support a verdict, and because there is insufficient evidence to support the tampering conviction, we reverse Defendant\u2019s conviction for tampering and instruct the district court to dismiss the tampering charge on remand.\nDefendant\u2019s Confrontation Clause Claims Concerning Joseph\u2019s Statements\n{32} We address Defendant\u2019s Confrontation Clause claims as they may come up again on retrial. The State proceeded to trial on the theory that Defendant was guilty of murder, not as a principal, but as an accessory to Joseph, \u201chelp[ing Joseph] and encouraging] him\u201d to kill Decedent. Castro testified at trial that, during the early morning of August 31, 2001, co-defendant Joseph came to her and told her that he had shot Decedent. When she was asked if she remembered Joseph telling her that Defendant was involved, she said that she did remember, but that she did not remember when he told her. At this point she broke down and the court took a recess. Upon the trial resuming, and having been shown a copy of her deposition, she stated that Joseph told her that Defendant \u201csaid to shoot him.\u201d The point of timing is unclear from Castro\u2019s testimony.\n{33} The district court had previously entered Castro\u2019s deposition into evidence as \u201cCourt\u2019s Exhibit 4,\u201d during argument on Defendant\u2019s first motion to sever his case from Joseph\u2019s. The district court found that:\nCastro testified to two admissions. One, she stated, the first one, upon Joseph Silva arriving home, that he made a statement to her which constituted an admission against Joseph Silva. It\u2019s unclear whether she inculpated [Defendant] or not at that time____ She indicated that Joseph indicated that he admitted to her or confessed to the crime to her but without seeing more.\nThe second part, apparently a telephone call between her and Joseph, Joseph went beyond that, stating that not only was he the person in effect that committed the murder, but [Defendant] told him to.\n{34} As a result of the division of the statements, the State asserts that these are \u201c[a]rguably ... two different statements\u201d\u2014 the first that Joseph shot Decedent, and the second statement inculpating Defendant that is more \u201cinculpatory\u201d against Joseph for the inclusion of Defendant. The district court found that the inclusion of Defendant within the statements \u201ccreates a factual interest for first degree murder, willful and deliberate, and the second degree crime of conspiracy, as opposed to lesser included, and it also implicates [Defendant], at least [if] not more of a degree than Joseph.\u201d The district court further found that the statement did not shift blame away from Joseph.\n{35} Both statements were offered against Defendant to prove the truth of the matters asserted therein, namely that Joseph shot Decedent after being told by Defendant to do so. The statements are hearsay under Rule 11-801(C) NMRA, and inadmissible unless otherwise allowed by rule or statute. Rule 11-802 NMRA.\n{36} Neither party disputes that Joseph, himself a co-defendant at trial, was unavailable to testify, see generally Rule 11-804 NMRA (hearsay exceptions requiring the unavailability of the declarant), and that Defendant had no prior opportunity to cross examine him. Defendant preserved his argument that admission of the statements violated his Sixth Amendment rights, both by moving to sever his trial from the other defendants, including Joseph, citing Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and by objecting to admission of the statements prior to Castro\u2019s testimony, and at the time Castro testified. Both motions were denied by the district court.\n{37} In ruling on these questions, the district court held that the statement was admissible under Rule 11-804(B)(3) as a statement against penal interest. The district court recognized that the statement inculpated Defendant, stating that \u201cthe [c]ourt could implicate each [defendant] equally,\u201d but stated that the inclusion of Defendant as telling Joseph to shoot Decedent would actually increase the peril to Joseph\u2019s penal interest by \u201cremov[ing] him from lesser degrees of the crime, such as consideration possibly for second degree or lesser included murder under the circumstances.\u201d The district court went on to state that the statement \u201cdid not tend to shift responsibility away from Joseph ..., and it [was] corroborated by independent evidence\u201d indicating that Defendant was present at the scene and involved in the incident. The district court concluded that the statement would be admissible at separate trials against both Defendant and Joseph, and denied the motion to sever.\n{38} Under the Sixth Amendment to the United States Constitution, all criminal defendants are guaranteed the right to be confronted with and to cross examine witnesses against them. See Alvarez-Lopez, 2004-NMSC-030, \u00b6 6. This is subject to some limitations. In New Mexico, the Confrontation Clause permits admission of a non-available declarant\u2019s hearsay statements that fall outside of Crawford if it either falls within a \u201cfirmly rooted hearsay exception\u201d to the hearsay rule or if not, if it carries with it \u201cparticularized guarantees of trustworthiness\u201d equivalent to those associated with a firmly rooted exception. Alvarez-Lopez, 2004-NMSC-030, \u00b6 16 (internal quotation marks and citation omitted).\nCranford v. Washington\n{39} In 2004, the Supreme Court of the United States in Crawford, held that the Sixth Amendment requires \u201cunavailability and a prior opportunity for cross-examination\u201d in order for a testimonial statement to be admitted at trial. 541 U.S. at 68, 124 S.Ct. 1354. The Court in Crawford stated that the Confrontation Clause applies in situations where the declarant is in the position of being a witness and giving statements that are \u201ctestimonial\u201d in character. Id. at 51, 124 S.Ct. 1354. If the statement is testimonial, a judicial determination of its reliability under the rules of evidence is immaterial to its admissibility, see State v. Forbes, 2005-NMSC-027, \u00b6 12, 138 N.M. 264, 119 P.3d 144, and the only relevant consideration is whether the statement was given a chance to be tested in \u201cthe crucible of cross-examination.\u201d Id. (internal quotation marks and citation omitted). On the other hand, \u201c[i]t is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.\u201d Davis v. Washington, 547 U.S. 813,-, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (2006).\n{40} Defendant urges us to regard Joseph\u2019s statement as testimonial. The State asserts that it is not testimonial, and that it is admissible under the exception to the hearsay rule contained in Rule 11-804(B)(3), or other guarantees of trustworthiness. Since the admission of hearsay can raise issues under the Confrontation Clause which are questions of law, we review this ruling, and Confrontation Clause questions in general, under a de novo standard. State v. Walters, 2006-NMCA-071, \u00b6 23, 139 N.M. 705, 137 P.3d 645, cert. granted, 2006-NMCERT-006, 140 N.M. 226, 141 P.3d 1280; State v. Lopez, 2000-NMSC-003, \u00b6 10, 128 N.M. 410, 993 P.2d 727. We agree with the State that the statement was not testimonial.\n{41} Crawford provided a number of examples of what \u201ctestimonial\u201d statements would be, including a broad definition suggested by the National Association of Criminal Defense Lawyers: \u201c[S]tatements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.\u201d Crawford, 541 U.S. at 52, 124 S.Ct. 1354 (internal quotation marks and citation omitted). The Supreme Court\u2019s decision in Davis is not helpful here, as this case does not concern statements made to police. See generally Davis, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224. This ease presents us with a statement far removed from one made in the course of an official investigation or made to a public official. The statement was not given in connection with any official contact with the declarant, and was not given in such circumstances that the declarant might anticipate its preservation for later use \u201cto establish or prove past events potentially relevant to later criminal prosecution.\u201d State v. Wright, 726 N.W.2d 464, 472 (Minn.2007). We therefore do not view the statement as one given in a situation that would lead the declarant to have an objective belief that it would be available for use at a later trial, and hold that the statement is not testimonial. See Alvarez-Lopez, 2004-NMSC-030, \u00b6 23.\n{42} Crawford deals with testimonial statements given by persons who are not co-defendants, although testimonial statements given by co-defendants and used against other defendants at trial is a Crawford issue. Walters, 2006-NMCA-071, \u00b6 49 (reversing convictions for presenting co-defendants\u2019 interlocking confessions in violation of Confrontation Clause). Walters noted a tendency toward \u201cever-increasing restrictions on the use of a co-defendant\u2019s out-of-court statements\u201d in federal jurisprudence. Id. \u00b636. Walters dealt with testimonial statements. Our Supreme Court in Alvarez-Lopez noted \u201cthat Crawford may not be applicable to statements made to friends or acquaintances that satisfy our Rule 11 \u2014 804(B)(3) analysis.\u201d Alvarez-Lopez, 2004-NMSC-030, \u00b6 23. In Alvarez-Lopez, a custodial confession by a co-defendant implicating the defendant was found to be testimonial and in violation of the Confrontation Clause, yet our Supreme Court indicated in dicta that a non-testimonial statement of that type might fall outside a Confrontation Clause analysis altogether. Id. \u00b6\u00b6 22,23.\n{43} In the absence of a testimonial statement, which we hold that this statement was not, we return to the \u201ctraditional\u201d analysis of whether an absent co-defendant\u2019s inculpatory statement violates Defendant\u2019s Sixth Amendment rights under Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), abrogated on other grounds as recognized in Crawford, 541 U.S. at 60, 124 S.Ct. 1354. See also Alvarez-Lopez, 2004-NMSC-030, \u00b6\u00b6 16, 22 (holding that where non-testimonial hearsay is involved, we return to Roberts analysis). Where the declarant is unavailable, as in this case, we can admit the hearsay statement if it demonstrates sufficient \u201c \u2018indicia of reliability,\u2019 \u201d meaning that (1) the evidence fell within a \u201cfirmly rooted hearsay exception\u201d or (2) the statement possessed \u201cparticularized guarantees of trustworthiness.\u201d Roberts, 448 U.S. at 66, 100 S.Ct. 2531; Alvarez-Lopez, 2004-NMSC-030, \u00b6 16.\nRules of Evidence\n{44} First, it is clear that the declarant of the statement, Joseph, was unavailable to testify. Joseph did not testify at trial, which makes him unavailable as a witness because we assume he exercised his privilege against self-incrimination. See McGuinness v. State, 92 N.M. 441, 444, 589 P.2d 1032, 1035 (1979). The statements made by Joseph to Castro were statements against his penal interest. Rule 11-804(B)(3) provides that statements against interest are included as a hearsay exception when \u201c(1) the declarant is unavailable as a witness and (2) the statement at the time of its making ... so far tended to subject the declarant to civil or criminal liability ... that a reasonable person in the declarant\u2019s position would not have made the statement unless believing it to be true.\u201d Alvarez-Lopez, 2004-NMSC-030, \u00b6 17 (alterations in original) (internal quotation marks omitted). Joseph admitted shooting Decedent. Only one shot was involved, and one shot killed him; the statements are unequivocally self-inculpatory.\n{45} Defendant points to Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999), for the proposition that any statements against penal interest by absent co-defendants that are sought to be used to inculpate another are inherently suspect, and would not satisfy the first Roberts test of being a \u201cfirmly rooted exception\u201d to the hearsay rule. Lilly, 527 U.S. at 124-25, 119 S.Ct. 1887. This argument was dismissed by our Supreme Court in Alvarez-Lopez, which pointed out that since Lilly, New Mexico has continued to regard statements against penal interest as being within a \u201c \u2018firmly rooted\u2019 \u201d exception, saying \u201cany evidence properly admitted under Rule 11-804(B)(3) would survive constitutional scrutiny.\u201d Alvarez-Lopez, 2004-NMSC-030, \u00b6 19.\n{46} Alvarez-Lopez overruled this line of eases insofar as they concern testimonial statements. See id. However, as noted above, the Court saw no need to address \u201cthe continued vitality of our Confrontation Clause opinions regarding statements against penal interest made to co-defendants, friends, family, or acquaintances.\u201d Id. \u00b623. Although we recognize the logic of Lilly, and have occasionally dipped a toe in waters not precisely mapped by the Supreme Court, see State v. Parish, 118 N.M. 39, 47, 878 P.2d 988, 996 (1994); State v. Duarte, 2004-NMCA-117, \u00b6 11, 136 N.M. 404, 98 P.3d 1054 (\u201c[W]e are given more latitude when the precise issue has not been already decided by our Supreme Court.\u201d), we cannot overrule the precedent it establishes. Duarte, 2004-NMCA-117, \u00b6 11. We have previously held that statements acknowledging criminal activity made to friends and acquaintances are more likely to be sufficiently trustworthy than statements made to authorities, which are more likely to be motivated by a desire to curry favor. See Gonzales, 1999-NMSC-033, \u00b6 12 (upholding the admissibility of a statement in which the declarant said he committed the crime at the behest of another to be against penal interest); State v. Gutierrez, 119 N.M. 658, 661, 894 P.2d 1014, 1017 (Ct.App.1995) (recognizing that a statement made to a friend or acquaintance \u201cis sufficiently against self-interest that a reasonable person is unlikely to make it unless it is true\u201d).\n{47} This approach is not without its problems. We are dealing with two statements; the first unfettered by any reference to Defendant, and the second, made some time later by telephone, that implicates Defendant. It is necessary that \u201cthe precise matter offered for its truth ought to be against the interest of the declarant.\u201d State v. Self, 88 N.M. 37, 41, 536 P.2d 1093, 1097 (Ct.App.1975). Duarte gives us pause, because in that case, the portion of the accomplice\u2019s statement implicating the defendant was held to be outside the penal interest exception, irrespective of its testimonial nature. Duarte, 2004-NMCA-117, \u00b6 21. We look to the whole of the surrounding circumstances in deciding whether the statement should be admissible. Id. \u00b6\u00b6 17-18.\n{48} In Duarte, the declarant gave a statement to the police after being caught red-handed in a drug deal, and then gave a later statement implicating his father, the defendant. Id. \u00b6 18. We held that the statement implicating the defendant was not a statement against penal interest because the declarant\u2019s liability was already unquestioned, and the later statement was likely given with a motive to either lessen his criminal liability or curry favor with the police who were interviewing him. Id. \u00b6 20. It is conceivable that Joseph made his second statement implicating Defendant in the murder to show that somehow he was compelled to shoot Decedent, which is arguably congruent with Duarte. Duarte, however, has two distinguishing characteristics that we believe take us away from such an analysis. First, the declarant in Duarte had been caught red-handed with 500 pounds of marijuana; there was no question of his involvement, and his admission only \u201cproved\u201d a known fact. Id. \u00b6\u00b6 2, 7, 18. Second, this Court in Duarte pointed out that where the statement there was made to police in the course of trying to work a deal, the statement in Gonzales was made in a statement to an acquaintance, away from motivations inherent to official contact. Duarte, 2004-NMCA-117, \u00b6 20. In Gonzales the declarant told an acquaintance that he had shot the victims and that the defendant had paid him for shooting one of the victims, 1999-NMSC033, 113, and our Supreme Court held that the statement provided a factual basis for charging the declarant with willful and deliberate murder and that \u201ca reasonable person in the declarant\u2019s position would not have made the statement unless believing it to be true.\u201d Id. \u00b6\u00b6 11-12 (internal quotation marks and citation omitted). In this context, we believe that Gonzales represents the better view, and hold that Joseph\u2019s statement was admissible.\nBruton v. United States\n{49} When the statement of a co-defendant at trial implicates the defendant to the point that it presents a substantial threat to a defendant\u2019s right to a fair trial, defendant may be entitled to a severance. Bruton, 391 U.S. at 131-32, 88 S.Ct. 1620. Defendant requested a severance on at least two occasions during trial which were denied. Defendant has not briefed the issue of whether denial of these motions was error, and we consider the issue abandoned, and will not address it here. See State v. Rendleman, 2003-NMCA-150, 188, 134 N.M. 744, 82 P.3d 554 (noting that when a party has not briefed an issue, the issue is deemed abandoned on appeal).\nCONCLUSION\n{50} Because the State could not offer any evidence other than Salas\u2019s testimony that Defendant held a gun, we hold that there was not substantial evidence to support the tampering with evidence conviction and remand for dismissal of that charge. Last, because the issue is likely to arise on retrial, we hold that the statements of Joseph were non-testimonial, fall outside of Craiuford as a result, and were properly admitted. We hold that the district court\u2019s ruling to limit cross-examination of Salas\u2019s testimony regarding a perjury deal made with the State was not harmless error, and we reverse and remand for a new trial.\n{51} IT IS SO ORDERED.\nWE CONCUR: MICHAEL D. BUSTAMANTE and CYNTHIA A. FRY, Judges.", "type": "majority", "author": "KENNEDY, Judge." } ], "attorneys": [ "Gary K. King, Attorney General, Santa Fe, NM, Joel Jacobsen, Assistant Attorney General, Albuquerque, NM, for Appellee.", "Kennedy & Han, P.C., Paul J. Kennedy, Albuquerque, NM, Caren I. Friedman, Santa Fe, NM, for Appellant." ], "corrections": "", "head_matter": "2007-NMCA-117\n168 P.3d 1110\nSTATE of New Mexico, Plaintiff-Appellee, v. Juan SILVA, Defendant-Appellant.\nNo. 24,273.\nCourt of Appeals of New Mexico.\nJune 26, 2007.\nCertiorari Granted, Aug. 15, 2007.\nGary K. King, Attorney General, Santa Fe, NM, Joel Jacobsen, Assistant Attorney General, Albuquerque, NM, for Appellee.\nKennedy & Han, P.C., Paul J. Kennedy, Albuquerque, NM, Caren I. Friedman, Santa Fe, NM, for Appellant." }, "file_name": "0686-01", "first_page_order": 718, "last_page_order": 731 }