{ "id": 4251347, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Ramon LOPEZ, Defendant-Appellant", "name_abbreviation": "State v. Lopez", "decision_date": "2011-08-02", "docket_number": "No. 30,257", "first_page": "179", "last_page": "187", "citations": [ { "type": "official", "cite": "150 N.M. 179" }, { "type": "parallel", "cite": "258 P.3d 458" }, { "type": "parallel", "cite": "2011-NMSC-035" } ], "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": "2011-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4249607 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 49" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0435-01" ] }, { "cite": "781 So.2d 452", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11115051 ], "pin_cites": [ { "page": "454-55" } ], "opinion_index": 0, "case_paths": [ "/so2d/781/0452-01" ] }, { "cite": "31 So.3d 833", "category": "reporters:state_regional", "reporter": "So. 3d", "case_ids": [ 7052225, 7052260 ], "pin_cites": [ { "page": "838" } ], "opinion_index": 0, "case_paths": [ "/so3d/31/0833-01", "/so3d/31/0833-02" ] }, { "cite": "765 So.2d 763", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11243105 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "765" }, { "page": "765" } ], "opinion_index": 0, "case_paths": [ "/so2d/765/0763-01" ] }, { "cite": "1999-NMSC-045", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106506 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 29" }, { "page": "\u00b6 30" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0454-01" ] }, { "cite": "817 So.2d 1006", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9426252 ], "pin_cites": [ { "page": "1008" } ], "opinion_index": 0, "case_paths": [ "/so2d/817/1006-01" ] }, { "cite": "843 So.2d 962", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9146471 ], "pin_cites": [ { "page": "964-65" } ], "opinion_index": 0, "case_paths": [ "/so2d/843/0962-01" ] }, { "cite": "753 So.2d 29", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11449360 ], "year": 2000, "pin_cites": [ { "page": "47" } ], "opinion_index": 0, "case_paths": [ "/so2d/753/0029-01" ] }, { "cite": "689 So.2d 259", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11923596 ], "weight": 3, "pin_cites": [ { "page": "264" }, { "page": "264" }, { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/so2d/689/0259-01" ] }, { "cite": "1998-NMSC-037", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827374 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 52" }, { "page": "\u00b6\u00b6 50-53" }, { "page": "\u00b6 52" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0338-01" ] }, { "cite": "378 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "757" } ], "opinion_index": 0 }, { "cite": "324 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487826 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0343-01" ] }, { "cite": "531 F.2d 183", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1074326 ], "pin_cites": [ { "page": "190" } ], "opinion_index": 0, "case_paths": [ "/f2d/531/0183-01" ] }, { "cite": "734 F.2d 1191", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 416517 ], "pin_cites": [ { "page": "1192" } ], "opinion_index": 0, "case_paths": [ "/f2d/734/1191-01" ] }, { "cite": "121 F.3d 1172", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 285184 ], "pin_cites": [ { "page": "1174-75" } ], "opinion_index": 0, "case_paths": [ "/f3d/121/1172-01" ] }, { "cite": "2009-NMSC-028", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4244456 ], "weight": 3, "pin_cites": [ { "page": "\u00b620" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0378-01" ] }, { "cite": "82 N.M. 537", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333146 ], "weight": 2, "pin_cites": [ { "page": "542" }, { "page": "762" } ], "opinion_index": 0, "case_paths": [ "/nm/82/0537-01" ] }, { "cite": "97 N.M. 130", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555197 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "133" }, { "page": "564" } ], "opinion_index": 0, "case_paths": [ "/nm/97/0130-01" ] }, { "cite": "2011-NMSC-003", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4248753 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 17-18" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0185-01" ] }, { "cite": "2007-NMSC-060", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3691173 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0811-01" ] }, { "cite": "413 F.3d 829", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 8971456 ], "pin_cites": [ { "page": "836" } ], "opinion_index": 0, "case_paths": [ "/f3d/413/0829-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 5, "year": 2004, "pin_cites": [ { "page": "50-51, 68", "parenthetical": "\"Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices.\"" }, { "parenthetical": "\"Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices.\"" }, { "parenthetical": "\"Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices.\"" }, { "page": "61, 68" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "124 N.M. 375", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 18319 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/124/0375-01" ] }, { "cite": "1997-NMCA-126", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b65" } ], "opinion_index": 0 }, { "cite": "99 N.M. 283", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584685 ], "weight": 2, "pin_cites": [ { "page": "285" }, { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0283-01" ] }, { "cite": "113 N.M. 221", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723276 ], "weight": 7, "year": 1992, "pin_cites": [ { "page": "226", "parenthetical": "stating that the motives for cross-examination at the preliminary hearing and the trial must be similar, but need not be identical" }, { "page": "1028", "parenthetical": "stating that the motives for cross-examination at the preliminary hearing and the trial must be similar, but need not be identical" }, { "page": "225-26" }, { "page": "1027-28" }, { "page": "226" }, { "page": "1029" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0221-01" ] }, { "cite": "2003-NMSC-006", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 15740 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 17" }, { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0459-01" ] }, { "cite": "2006-NMCA-059", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2541463 ], "weight": 12, "pin_cites": [ { "page": "\u00b68" }, { "page": "\u00b6 7" }, { "page": "\u00b6 16" }, { "parenthetical": "emphasis omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0595-01" ] } ], "analysis": { "cardinality": 930, "char_count": 21527, "ocr_confidence": 0.684, "pagerank": { "raw": 1.0351846516724756e-07, "percentile": 0.5492341445389287 }, "sha256": "69494e7e198555ba90d3f0f59c42e0a48cecb1272e28a186d9ac424ef9b9d978", "simhash": "1:c278d72ecddd8a7a", "word_count": 3349 }, "last_updated": "2023-07-14T21:53:59.243869+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: CHARLES W. DANIELS, Chief Justice, and PETRA JIMENEZ MAES, RICHARD C. BOSSON, EDWARD L. CH\u00c1VEZ, Justices." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Ramon LOPEZ, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSERNA, Justice.\n{1} Defendant Ramon Lopez was convicted by a jury of multiple crimes, including first-degree felony murder, contrary to NMSA 1978, Section 30-2-l(A)(2) (1994), with first-degree criminal sexual penetration (CSP), contrary to NMSA 1978, Section 30-9-ll(C)(2) (1995) (amended 2009), as the underlying felony. Defendant invokes this Court\u2019s appellate jurisdiction over sentences for life imprisonment, contained in Article VI, Section 2 of the New Mexico Constitution and Rule 12-102(A)(1) NMRA. We address two of the issues Defendant has raised on appeal: whether Defendant\u2019s right to confront witnesses who testified against him were violated by the admission of the preliminary hearing testimony of an unavailable witness, and whether the district court erred in allowing the State to impeach its own witness with otherwise inadmissible hearsay. We conclude that the district court committed reversible error by allowing the hearsay to be admitted under the auspices of the State\u2019s impeachment of the preliminary hearing testimony of the unavailable witness.\n{2} Crystal Calderella (Victim) last was seen alive the night of April 12, 2001, with Defendant, Greg Romero, and others who were consuming drugs and alcohol at Victim\u2019s home in Socorro, New Mexico. On April 15, 2001, Victim\u2019s body was discovered in her home, her clothes partially removed. There were bruises and contusions on Victim\u2019s neck and lower legs, and blood on the back of Victim\u2019s head. Semen, later shown to be Defendant\u2019s, was found in Victim\u2019s vagina. Defendant was charged with Victim\u2019s murder after being arrested on an unrelated charge.\n{3} At Defendant\u2019s preliminary hearing, Romero testified under oath about the events that occurred during the evening of Victim\u2019s death. Before trial, the State informed the district court that it was unable to locate Romero, who had absconded from probation in California, and explained the efforts that had been undertaken to locate him. The district court permitted the State to introduce Romero\u2019s preliminary hearing testimony via tape under the hearsay exception for unavailable witnesses contained in Rule 11-804(A)(5) and (B)(1) NMRA. Defendant argues that the admission of Romero\u2019s preliminary hearing testimony violated the Confrontation Clauses contained in the Sixth Amendment to the United States Constitution and Article II, Section 14 of the New Mexico Constitution.\n{4} \u201cWe first determine whether the preliminary hearing testimony was properly admitted under the Rules of Evidence.\u201d State v. Henderson, 2006-NMCA-059, \u00b68, 139 N.M. 595, 136 P.3d 1005. Only if the preliminary hearing testimony was properly admitted do we address the Confrontation Clause issue. Id. Defendant argues that the preliminary hearing testimony was improperly admitted because Defendant did not have an opportunity for a meaningful cross-examination of Romero. We review the admission of evidence pursuant to an exception or an exclusion to the hearsay rule under an abuse of discretion standard. State v. McClaugherty, 2003-NMSC-006, \u00b6 17, 133 N.M. 459, 64 P.3d 486.\n{5} \u201cA hearsay statement consists of an out-of-court statement offered to prove the truth of the matter asserted,\u201d and is inadmissible as substantive evidence unless it falls within an exclusion or exception to the hearsay rule. Id. Rule 11-804(A)(5) defines as unavailable a witness who \u201cis absent from the hearing and the proponent of a statement has been unable to procure the declarant\u2019s attendance ... by process or other reasonable means.\u201d A statement of an unavailable witness is admissible if the unavailable witness\u2019s \u201c[t]estimony [was] given as a witness at another hearing of the same or a different proceeding ... [and] if the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination.\u201d Rule 11 \u2014 804(B)(1); see also State v. Gonzales, 113 N.M. 221, 226, 824 P.2d 1023, 1028 (1992) (stating that the motives for cross-examination at the preliminary hearing and the trial must be similar, but need not be identical).\n{6} Whether a party had an opportunity and similar motive to develop testimony must be determined on a case-by-case basis. Gonzales addressed a situation where the defendant had an opportunity to cross-examine a witness at a preliminary hearing, but at trial, when the witness was unavailable to testify, the defendant\u2019s theory of his defense had changed from self-defense to identification. 113 N.M. at 225-26, 824 P.2d at 1027-28. We noted that the Court of Appeals had set forth a \u201cper se rule that absent extraordinary circumstances preliminary hearing testimony may be admitted at trial if the witness is unavailable because the motive to cross-examine is similar.\u201d Id. at 226, 824 P.2d at 1028 (citing State v. Massengill, 99 N.M. 283, 285, 657 P.2d 139, 141 (Ct.App.1983)). Despite the change in the defendant\u2019s theory, Gonzales concluded that because the defendant \u201cwas given the opportunity to cross-examine the witness at the preliminary hearing, [the] defendant was not denied the right to confront the witness against him.\u201d Id. at 227, 824 P.2d at 1029.\n{7} In Henderson, the preliminary hearing testimony of two unavailable witnesses was admitted at trial. 2006-NMCA-059, \u00b6 7, 139 N.M. 595, 136 P.3d 1005. \u201c[T]he trial court acknowledged that [the defendant could not have cross-examined [the unavailable witnesses] at the preliminary hearing on all issues that were relevant to his defense because all the issues were not known at that time.\u201d Id. The Court of Appeals nevertheless concluded that the defendant had an adequate opportunity for cross-examination because he was able to cross-examine the witness \u201cabout whether any crime was committed and whether [the defendant was involved.\u201d Id. \u00b6 12. The defendant, therefore, \u201chad an \u2018opportunity and similar motive\u2019 to cross-examine [the witness] at the preliminary hearing as he would have at trial.\u201d Id.\n{8} In this case, the purpose of the preliminary hearing was to determine whether \u201cthere [was] probable cause to believe that the defendant committed an offense.\u201d Rule 5-302(C) NMRA; see State ex rel. Whitehead v. Vescovi-Dial, 1997-NMCA-126, \u00b65, 124 N.M. 375, 950 P.2d 818 (\u201cThe primary purpose of the preliminary examination is to provide an independent evaluation of whether the state has met its burden of demonstrating probable cause.\u201d). At the preliminary hearing, Defendant questioned Romero about whether Romero witnessed Defendant engage in sexual intercourse with Victim; whether Defendant assaulted Victim, or removed Victim\u2019s clothes; and whether Romero witnessed anything \u201cunusual\u201d happen between Victim and Defendant that night. At the preliminary hearing, Defendant argued that there was insufficient evidence to establish probable cause that Defendant committed a crime, and that the case should not be bound over for trial; his motive for cross-examining Romero, therefore, was to show that Defendant did not rape and murder Victim.\n{9} Defendant\u2019s motive at trial likewise was to demonstrate that he was not guilty of raping and murdering Victim. During both proceedings, Defendant\u2019s motive was to discredit the State\u2019s case and to argue that the evidence did not establish his guilt. We conclude, therefore, that because Defendant had an opportunity and similar motive to cross-examine Romero at the preliminary hearing as he did at trial, the district court did not abuse its discretion in admitting Romero\u2019s preliminary hearing testimony at trial.\n{10} Having determined that the Rules of Evidence were not violated by the admission of Romero\u2019s preliminary hearing testimony, we turn to the constitutional question. Claimed violations of the Confrontation Clause are questions of law which we review de novo. Id. \u00b6 6.\n{11} Under the Sixth Amendment to the United States Constitution, all criminal defendants \u201cshall enjoy the right ... to be confronted with the witnesses against him.\u201d Testimonial statements satisfying the Rules of Evidence do not necessarily satisfy the requirements of the Confrontation Clause. Crawford v. Washington, 541 U.S. 36, 50-51, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (\u201cLeaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices.\u201d). When admitting testimonial statements, the Confrontation Clause requires that the accused have a prior opportunity for cross-examination. Id.; accord United States v. Aldridge, 413 F.3d 829, 836 (8th Cir.2005) (Bye, J., concurring in part and dissenting in part) (\u201cThe main and essential purpose of confrontation is to provide a meaningful opportunity for the cross-examination of the adverse witness.\u201d). Once a defendant has tested the reliability of an unavailable witness\u2019s testimony against him in the \u201ccrucible of cross-examination,\u201d the demands of the Confrontation Clause have been met. Crawford, 541 U.S. at 61, 68, 124 S.Ct. 1354. When a witness testifies under oath at a preliminary hearing, admission of that preliminary hearing testimony does not violate the Confrontation Clause if: \u201c(1) the witness is unavailable; and (2) the defendant had a prior opportunity to cross-examine the statement that is now being offered into evidence against him.\u201d Henderson, 2006-NMCA-059, \u00b6 16, 139 N.M. 595, 136 P.3d 1005 (emphasis omitted).\n{12} Defendant had an opportunity to cross-examine Romero, and actually did cross-examine him, on the \u201cstatement that is now being offered into evidence against him.\u201d Id. (emphasis omitted). At both the preliminary hearing and at trial, Defendant was facing the same charges, was represented by the same defense counsel, and had the same motive to cross-examine Romero. See id. \u00b6 19. We conclude that the opportunity to cross-examine Romero at the preliminary hearing satisfied the demands of the Confrontation Clause of the Sixth Amendment. The introduction of Romero\u2019s testimony at the preliminary hearing, therefore, did not run afoul of the Rules of Evidence or the Sixth Amendment.\n{13} Defendant next argues that the district court erred in permitting the State to impeach Romero\u2019s preliminary hearing testimony with a prior inconsistent statement. In his preliminary hearing testimony, Romero denied that he told an acquaintance, Barbara Olguin, that he saw Defendant choke and rape Victim. After Romero\u2019s preliminary hearing testimony was played for the jury, the State was permitted to call Olguin to impeach Romero\u2019s statement. Before Olguin testified, the district court gave a limiting instruction to the jury, stating that her testimony was to be used solely for the purpose of impeachment. Olguin testified that a few weeks after Victim\u2019s death, Romero told her that he saw a physical altercation between Defendant and Victim on the night Victim died and Victim hit her head on a table edge and was knocked unconscious. Olguin testified that Romero said he saw Defendant crawl on top of Victim, hold her by the mouth, choke her, and rape her.\n{14} Admission of a prior inconsistent statement is within \u201cthe sound discretion of the trial court ... and will not be reversed absent an abuse of that discretion.\u201d Davis, 97 N.M. at 133, 637 P.2d at 564. A trial court abuses its discretion when a \u201cruling is clearly against the logic and effect of the facts and circumstances of the case,\u201d such that it can be characterized \u201cas clearly untenable or not justified by reason.\u201d State v. Dominguez, 2007-NMSC-060, \u00b6 16, 142 N.M. 811, 171 P.3d 750, holding modified on other grounds by State v. Garcia, 2011-NMSC-003, \u00b6\u00b6 17-18, 149 N.M. 185, 246 P.3d 1057 (internal quotation marks and citation omitted).\n{15} If offered for the truth of the matter asserted, Olguin\u2019s testimony of Romero\u2019s out-of-court statements would constitute inadmissible hearsay. See McClaugherty, 2003-NMSC-006, \u00b6 17, 133 N.M. 459, 64 P.3d 486. Out-of-court statements are not hearsay, however, if they are offered to impeach a witness on a material matter inconsistent with the testimony presented at trial. See Rule 11-613 NMRA; State v. Davis, 97 N.M. 130, 133, 637 P.2d 561, 564 (1981); State v. Carlton, 82 N.M. 537, 542, 484 P.2d 757, 762 (Ct.App.1971). \u201cWhen impeaching with prior inconsistent statements not made under oath, it is the fact of the inconsistency that is admissible, not the substantive truth or falsity of the prior statement.\u201d State v. Macias, 2009-NMSC-028, \u00b620, 146 N.M. 378, 210 P.3d 804. The declarant of a hearsay statement admitted into evidence may be attacked for lack of credibility in the same manner as if the declarant had testified as a witness. Rule 11-806 NMRA.\n{16} Rule 11-607 NMRA \u201callow[s] a party to attack the credibility of its own witnesses.\u201d Id. \u00b6 21. Courts and commentators are in general agreement that a witness may not be called and then impeached solely for the purpose of evading the rules of evidence. See United States v. Logan, 121 F.3d 1172, 1174-75 (8th Cir.1997) (\u201cCourts must be watchful that impeachment is not used as a subterfuge to place otherwise inadmissible hearsay before the jury.\u201d (internal quotation marks and citation omitted)); United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984) (\u201c[I]t would be an abuse of the rule [permitting impeachment], in a criminal case, for the prosecution to call a witness that it knew would not give it useful evidence, just so it could introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence-or, if it didn\u2019t miss it, would ignore it.\u201d); accord United States v. Morlang, 531 F.2d 183, 190 (4th Cir.1975); State v. Hunt, 324 N.C. 343, 378 S.E.2d 754, 757 (1989); 1 Kenneth S. Broun et al. eds., McCormick on Evidence \u00a7 39, at 168 (6th ed. 2006). Only if the primary purpose of the proffered testimony is to provide evidence, and not as a back-door attempt to introduce otherwise inadmissible hearsay under the auspices of impeachment, should a court permit that evidence to be presented to the jury.\n{17} This Court, in State v. Brown, stated that a party may not call a witness for the primary purpose of impeaching a witness with a prior statement which otherwise would be inadmissible hearsay. 1998-NMSC-037, \u00b6 52, 126 N.M. 338, 969 P.2d 313. In Brown, we used the Florida Supreme Court\u2019s approach to determining whether a witness\u2019s testimony has a proper primary purpose, set forth in Morton v. State, 689 So.2d 259, 264 (Fla.1997) (abrogated in part by Rodriguez v. State, 753 So.2d 29, 47 (Fla. 2000)). 1998-NMSC-037, \u00b6\u00b6 50-53,126 N.M. 338, 969 P.2d 313. The Morton approach scrutinizes the content of the witness\u2019s testimony to ascertain whether it contains evidence that is both favorable and unfavorable to the proponent. Morton, 689 So.2d at 264.\n{18} Although this Court has not engaged in substantial analysis as to the meaning of \u201cfavorable\u201d and \u201cunfavorable\u201d in Morton, Florida\u2019s courts have reviewed the analysis and we look to their cases as instructive. See State v. Richards, 843 So.2d 962, 964-65 (Fla.Dist.Ct.App.2003) (holding that the state\u2019s impeachment of its own witness was proper where the witness\u2019s favorable testimony \u201cplace[d] the defendant in proximity to ... the victim throughout the evening of the crime [and] supplie[d] a possible motive for the shooting.\u201d); Owens v. State, 817 So.2d 1006, 1008 (Fla.Dist.Ct.App.2002) (finding impeachment of the state\u2019s own witness proper where the witness\u2019s unfavorable testimony was materially inconsistent with prior statements and directly contradicted the defendant\u2019s guilt). These cases indicate that the primary purpose of a witness\u2019s testimony is characterized as favorable when that testimony goes to a substantive matter in controversy, not simply whether it is merely relevant. See State v. Varela, 1999-NMSC-045, \u00b6 29, 128 N.M. 454, 993 P.2d 1280 (\u201cIf the prosecution elicits relevant, substantive testimony from [a] witness [it calls], [the prosecution] may impeach its witness with prior inconsistent statements about the same matter being testified to at trial.\u201d (internal quotation marks and citation omitted)); James v. State, 765 So.2d 763, 765 (Fla.Dist.Ct.App. 2000). \u201cIf the witness\u2019s testimony is useful to establish any fact of consequence significant in the contest of litigation, the witness may be impeached by means of a prior inconsistent statement as to any other matter testified to.\u201d McCormick, supra, at 169. Even if testimony is relevant and substantive, however, if it is cumulative or duplicative, evidence may not be introduced for the primary purpose of later impeaching that testimony. See Ruff v. State, 31 So.3d 833, 838 (Fla.Dist.Ct.App.2010) (finding impeachment of its own witness was improper where the witness\u2019s testimony was duplicative and \u201cnot substantive evidence of any facts in dispute\u201d); James v. State, 765 So.2d 763, 765 (Fla.Dist.Ct.App.2000) (finding impeachment of the state\u2019s own witness improper where the witness \u201cdid not testify as to any substantive matter in controversy that had not already been testified to by other prosecution witnesses\u201d).\n{19} Unfavorable testimony, on the other hand, is that which is \u201caffirmatively harmful\u201d to the proponent of the witness\u2019s ease. See Brown, 1998-NMSC-037, \u00b6 52, 126 N.M. 338, 969 P.2d 313 (quoting Morton, 689 So.2d at 264); see also Laur v. State, 781 So.2d 452, 454-55 (Fla.Dist.Ct.App.2001) (finding the state\u2019s impeachment of its own witness was proper where she provided both favorable testimony and \u201caffirmatively harmful\u201d testimony, including denying the crime had occurred); 4 Clifford S. Fishman, Jones on Evidence \u00a7 26:27, at 365 (7th ed. 2000) (stating that testimony must be \u201caffirmatively harmful,\u201d not \u201cmerely disappointing\u201d).\n{20} The State suggests that Romero\u2019s testimony was both favorable and unfavorable to its ease against Defendant, and that Olguin\u2019s testimony was proper for the impeachment of the unfavorable portion of Romero\u2019s testimony. According to the State, Romero\u2019s favorable testimony established the events of the last night of Victim\u2019s life, identified Victim\u2019s ear, and corroborated the testimony of other witnesses. See Varela, 1999-NMSC-045, \u00b6 30, 128 N.M. 454, 993 P.2d 1280 (citing corroborating testimony as favorable evidence for the State). The State contends that Romero\u2019s unfavorable testimony was his statement that he did not see anything \u201cunusual\u201d happen between Defendant and Victim, weakening the case against Defendant. The State used Olguin\u2019s testimony of Romero\u2019s prior inconsistent statement to attack the credibility of that statement.\n{21} We are not convinced that the State introduced Romero\u2019s testimony for the primary purpose of providing evidence material to its prosecution. Much of Romero\u2019s \u201cfavorable\u201d testimony pertained to innocuous events surrounding the purchase and use of drugs on the night of Victim\u2019s death, to which other live witnesses testified at trial. Testimony concerning the purchase and use of drugs is immaterial in establishing Defendant\u2019s guilt in Victim\u2019s death. Moreover, Defendant largely conceded the events set forth in Romero\u2019s testimony in his opening statements to the jury. Romero\u2019s \u201cunfavorable\u201d testimony, that nothing \u201cunusual\u201d was afoot when he left Victim\u2019s home on the night of her death, was consistent with the State\u2019s theory of the case and leveled no affirmative harm in the State\u2019s direction.\n{22} The State knew with certainty before trial that the recorded preliminary hearing testimony contained Romero\u2019s denial that he made statements to Olguin inculpating Defendant. Even if there had been anything in Romero\u2019s preliminary hearing testimony that the State could plausibly claim it needed at trial, the State could have introduced that portion of the preliminary hearing testimony without introducing the denials that purportedly gave rise to the reason for introducing Olguin\u2019s otherwise inadmissible hearsay. The State did not have a proper primary purpose of admitting Romero\u2019s testimony to provide evidence material to its case. We agree with Defendant that the introduction of Romero\u2019s testimony was for the purpose of impeaching that testimony with Olguin\u2019s testimony as to Romero\u2019s otherwise inadmissible statements. Accordingly, we hold that the district court abused its discretion by permitting Olguin to testify.\n{23} For the foregoing reasons, we reverse Defendant\u2019s convictions and remand the case to district court for a new trial.\n{24} IT IS SO ORDERED.\nWE CONCUR: CHARLES W. DANIELS, Chief Justice, and PETRA JIMENEZ MAES, RICHARD C. BOSSON, EDWARD L. CH\u00c1VEZ, Justices.\n. We do not reach Defendant's confrontation rights under Article II, Section 14 of the New Mexico Constitution as that argument was not preserved. See State v. Leyva, 2011-NMSC-009, \u00b6 49, 149 N.M. 435, 250 P.3d 861 (stating that when a state constitutional provision has never been interpreted as providing greater protections than its federal counterpart, the proponent must make the arguments necessary for the court to conduct an interstitial analysis).", "type": "majority", "author": "SERNA, Justice." } ], "attorneys": [ "Hugh W. Dangler, Chief Public Defender Nina Lalevic, Assistant Appellate Defender Santa Fe, NM, for Appellant.", "Gary K. King, Attorney General, Andrea Sassa, Assistant Attorney General Santa Fe, NM, for Appellee." ], "corrections": "", "head_matter": "2011-NMSC-035\n258 P.3d 458\nSTATE of New Mexico, Plaintiff-Appellee, v. Ramon LOPEZ, Defendant-Appellant.\nNo. 30,257.\nSupreme Court of New Mexico.\nAug. 2, 2011.\nHugh W. Dangler, Chief Public Defender Nina Lalevic, Assistant Appellate Defender Santa Fe, NM, for Appellant.\nGary K. King, Attorney General, Andrea Sassa, Assistant Attorney General Santa Fe, NM, for Appellee." }, "file_name": "0179-01", "first_page_order": 215, "last_page_order": 223 }