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State v. Maestas

Supreme Court of New Mexico

January 8, 2018

STATE OF NEW MEXICO, Plaintiff-Petitioner,
JOSHUA MAESTAS, Defendant-Respondent.

         ORIGINAL PROCEEDING ON CERTIORARI Reed S. Sheppard, District Judge

          Hector H. Balderas, Attorney General Joel K. Jacobsen, Assistant Attorney General Santa Fe, NM for Petitioner

          León Felipe Encinias Albuquerque, NM for Respondent



         {1} In prior cases we have determined that while a defendant has the constitutional right to confrontation, that right may be forfeited as a result of his own wrongdoing. In this case we determine whether wrongdoing requires an overt threat of harm to procure a witness's silence or absence. When the State's witness, Juliana Barela, Defendant Joshua Maestas's girlfriend, refused to testify at trial, the district court declared her unavailable. The State then requested that the district court find that Defendant had obtained Barela's unavailability by wrongdoing, and to therefore admit at trial testimony Barela gave to the grand jury, a statement she made to police, and a call she made to 911 operators. In support of its claim that Defendant had procured and intended to procure Barela's unavailability by way of misconduct, the State offered recorded jailhouse phone conversations between Defendant and Barela. The district court determined that Defendant had neither caused nor intended to cause by any wrongdoing Barela's decision not to testify, concluded Barela's prior statements were thus inadmissible, and dismissed Defendant's indictment. The State appealed. The Court of Appeals affirmed the district court's ruling. See State v. Maestas, No. 31, 666, mem. op. ¶¶ 1, 20 (N.M. Ct. App. Jun. 3, 2014) (nonprecedential).

         {2} The State appealed to this Court pursuant to Rule 12-502 NMRA, which governs petitions for review of a decision by the Court of Appeals. We granted certiorari. We hold that wrongdoing, for purposes of the forfeiture-by-wrongdoing exception, need not take the form of overt threat of harm; various forms of coercion, persuasion, and control may satisfy the requirement. Accordingly, we reverse the decisions of the district court and Court of Appeals and remand to the district court to apply the forfeiture-by-wrongdoing exception, which we clarify today.

         I. BACKGROUND

         {3} Following the altercation with Defendant, Barela received treatment for a concussion at Presbyterian Medical Center and her doctor reported a domestic incident to the police. While at the hospital, Deputy Metzgar of the Bernalillo County Sheriff's Department recorded his interview with Barela, who alleged that on December 2, 2009, Defendant had physically abused her and then threatened to kill her if he went to jail. Barela also completed a written statement. Barela later testified before a grand jury as a witness for the State. The grand jury returned an indictment charging Defendant with aggravated battery against a household member pursuant to NMSA 1978, Section 30-3-16 (2008); intimidation of a witness pursuant to NMSA 1978, Section 30-24-3(A)(3) (1997); child abuse pursuant to NMSA 1978, Section 30-6-1(D) (2009); battery against a household member pursuant to NMSA 1978, Section 30-3-15 (2008); and assault against a household member pursuant to NMSA 1978, Section 30-3-12 (1995).

         {4} At Defendant's arraignment on January 4, 2010, his probation officer recommended that the district court increase Defendant's bond because Defendant was "an extreme risk to the victim." The probation officer added that at the time of his arrest in this case, Defendant was on supervised release for failing to comply with conditions of release for a separate misdemeanor domestic battery, for which Barela was also the alleged victim. The State expressed concern "about the continued ongoing violence." The district court, concerned that Defendant had acquired a new charge while he was under court-ordered supervision, increased Defendant's bond from $25, 000 to $50, 000. At the end of the hearing, Defendant acknowledged he was not to have any contact with Barela as a condition of his release.

         {5} On February 26, 2010, the district court heard Defendant's motion to review his conditions of release. Defendant asked that his bond be reduced to $25, 000 cash or surety with release to a third-party custodian-his aunt or to other relatives in Las Vegas. The State argued in response that bond had already been increased to $50, 000 based on a finding that Defendant was a danger to Barela and the community. The State added that Defendant had intimidated and threatened Barela on other occasions as well and reported that a separate criminal matter was pending, stemming from an August 29, 2009, incident wherein Defendant had continually called and harassed Barela, threatening to shoot her. The State also raised that Barela also believed that Defendant's family members had been following her by car on January 2 and January 6, 2010. The district court lowered Defendant's bond to $25, 000 and ordered Defendant released pre-trial to the Las Vegas relatives. Again, at the conclusion of the hearing, Defendant acknowledged the court's order not to "have any contact in any manner whatsoever with [Barela]." Barela was present at the hearing.

         {6} On April 6, 2010, the district court held a hearing on a new motion Defendant had filed seeking review of his conditions of release. Defendant asked the district court to change his third-party custodian to his aunt and to reduce his bond. The State argued the $25, 000 bond set by the district court was reasonable based on Defendant's lengthy history of domestic violence; he had been arrested seven times for domestic violence between 2003 and 2009. Barela was again present at the hearing. The district court denied Defendant's motion to reduce his bond, finding $25, 000 was reasonable under the circumstances. The district court allowed Defendant to be released into the custody of his aunt under a continuing order that Defendant "have . . . no contact whatsoever" with Barela.

         {7} On April 30, 2010, the parties stipulated to a stay of the proceedings pending a determination of Defendant's competency. At later hearings, the district court determined Defendant was not competent to stand trial and was dangerous to himself and others. The district court thus stayed the proceedings and ordered Defendant committed for evaluation and treatment to attain competency. See NMSA 1978, § 31-9-1.2 (1999). Defendant remained under the supervision of his aunt pending transportation for treatment to attain competency.

         {8} On November 3, 2010, the day after a hearing to determine Defendant's dangerousness, the State filed an emergency motion for reconsideration of Defendant's conditions of release. The State alleged that Defendant, angry at the outcome of the dangerousness hearing, called and drove to the home of Barela's mother's boyfriend and threatened Barela's mother with a drive-by shooting. By the time police arrived at the home, the State alleged, Defendant had fled the scene. The district court convened a hearing to reconsider Defendant's conditions of release. Defense counsel was present and stated that he had attempted to contact Defendant, had communicated with Defendant's family, and was told Defendant had not returned home. Defense counsel indicated he was not waiving Defendant's presence at the hearing. In response, the State expressed concern that Defendant had allegedly carried a handgun when he threatened Barela's mother with a drive-by shooting, and the State thus asked that Defendant be held in custody until he could be transported for treatment to attain competency. Based on the State's allegations, the district court issued a bench warrant for Defendant's arrest and ordered a no-bond hold. Defendant was arrested later that day and held at the Bernalillo Country Metropolitan Detention Center.

         {9} From November 10, 2010, through January 6, 2011, Barela contributed money to Defendant's detention center phone account. Partly because of those contributions, they remained in frequent contact, exchanging a total of 588 phone calls over that period.

         {10} On May 5, 2011, Barela filed a notarized affidavit of nonprosecution that she had signed without her own counsel in Defendant's attorney's office, indicating that her statement to the police had been made "under pressure from the police and was written in error"; that on or about December 2, 2009, Defendant "did not intimidate [her] or threaten [her] to keep [her] from reporting the incident of December 2, 2009 to the police"; and that Defendant "did not threaten [her] or cause [her] to believe [she] was in danger of receiving an immediate battery." Then on July 1, 2011, in response to a subpoena to appear at an interview at the district attorney's office, Barela appeared with her counsel, who instructed Barela not to give a statement at the pre-trial interview. The State filed a motion to compel Barela's testimony. The district court held a hearing on the motion on September 2, 2011, and Barela was placed under oath. The State asked, "Ms. Barela, can you tell me what occurred on December 2nd of 2009 involving the defendant, Mr. Joshua Maestas?" At that point, Barela's counsel asserted Barela's Fifth Amendment right not to testify.

         {11} After the hearing, the State filed a motion in limine requesting that the district court declare Barela unavailable and find that her prior statements were admissible under the doctrine of forfeiture by wrongdoing. The State contended Defendant had repeatedly called Barela from the jail, instructed her to lie for him and recant her statements, and intended to and did cause Barela's assertion of her Fifth Amendment right, rendering her unavailable to testify against him. In a written response, Defendant did not deny the content of the calls but described them as "puffing" and "not relevant to the issue of whether actions by [Defendant] caused Barela to make the affidavit[] which resulted in her asserting her privilege and ultimately in her unavailability." Defendant added he was not sophisticated enough, based on intelligence test scores, to devise that kind of plan. Furthermore, Defendant contended, Barela continued to place money on Defendant's jail account for phone calls, Barela and Defendant had "genuine feelings for each other, " and Barela had recanted because she simply "wanted to right a wrong."

         {12} On September 26, 2011, during a hearing on pending motions, the State asked the district court to "declare [Barela] unavailable" and stated its intention to then argue for admission of her prior statements based on a claim Defendant had forfeited his confrontation right by wrongdoing. Defendant argued that Barela's May 5, 2011, affidavit of nonprosecution "essentially recant[ed]" both her statement to the police and her grand jury testimony and accordingly had waived her Fifth Amendment right under Rule 11-511 NMRA.

         {13} After discussion of whether Barela had been informed of the consequences of making voluntary statements and whether she had waived her Fifth Amendment right under Rule 11-511, the district court found Defendant's counsel had no obligation to counsel Barela before she signed the notarized affidavit in his office. The district court granted the State's request to find Barela unavailable because of her assertion of her Fifth Amendment right.

         {14} The State then sought to introduce evidence of Barela's cooperation with the prosecution prior to Defendant's threatening phone calls in support of its claim of Defendant's forfeiture of his confrontation right by wrongdoing. The evidence included (1) the recording of the 911 call concerning the December 2, 2009 domestic abuse, (2) a belt tape recording of Barela's statements to the officer at the hospital, (3) the written statement Barela authored as part of the police investigation of Defendant's case, and (4) the transcript of Barela's testimony to the grand jury. The district court considered all but the 911 call, concluding the call was "not relevant" for purposes of evaluating the application of the doctrine of forfeiture by wrongdoing.

         {15} The State also sought to establish Defendant's forfeiture by introducing evidence of his threats to Barela and her mother. This evidence included a CD containing the 588 phone calls-totaling more than 55 hours-that Barela had with Defendant while he was in jail and a recording of a 911 call Barela's mother had made in response to Defendant's threat that he would conduct a drive-by shooting. The district court held that any alleged threats to Barela's mother were irrelevant for purposes of evaluating Defendant's forfeiture by wrongdoing.

         {16} The district judge indicated that while he had not been provided transcripts, he had been provided the CD of the jail telephone call recordings at a prior hearing. He stated

[t]he Court has spent over an hour listening to phone calls. That's a very good representative sample of the total of almost 56 hours of phone calls. I listened to ten in a row and I just selectively skipped through and listened to primarily the longer calls.

         After that review, the district judge noted (1) Barela had added the money to Defendant's detention center phone account "to enable those calls to be made in the first place, " (2) the language used on the calls was "atrocious, " (3) Barela had often supported Defendant's dislike for her mother, and (4) Barela and Defendant typically said "I love you, babe" to each other at the end of each call. Based in part on those findings,

The [c]ourt found no threats and have not been pointed to any threats by the State to the effect that, "Juliana, if you don't come in and take the Fifth or file a nonaffidavit, nonprosecution affidavit or go to Mr. Encinias' office to file an affidavit, I'm going to kill or hurt your mother." That's not the essence of these phone calls at all that I have reviewed. I'm not going to listen to 55 hours of phone calls.

{17} The district court added that "no single call has been pointed out to the Court wherein [a nonprosecution affidavit is] the subject of the conversation. . . . I found no threats that under the Forfeiture by Wrongdoing Doctrine would indicate that [Defendant] has done anything-and this is very important-with the intent to keep . . . Barela from testifying." The district court emphasized that Defendant "says all these things he's going to do if he gets out, but it's not in the context of trying to prevent her from testifying. . . . These are two people that apparently have very strong feelings for one another . . . ." And, the district court observed, on the occasion when Defendant threatened to "blow[] up" Barela's mother's house, the conversation "had no contextual setting that he was doing that to threaten . . . Barela that if she came in to court and testified then he was going to blow up her mother's house."

         {18} Based on those conclusions, the district court determined that although Barela was unavailable, the State had failed to prove Defendant caused Barela's unavailability and had failed to prove Defendant intended to prevent Barela from testifying. The district court therefore denied the State's motion to admit Barela's prior statements. And based on the State's position that it could not proceed to trial without Barela's statements, the district court entered an order dismissing Defendant's charges on October 3, 2011.

         {19} The State appealed. The Court of Appeals affirmed the district court's ruling. See Maestas, No. 31, 666, mem. op. ¶ 1. The State sought further review in this Court, pursuant to Rule 12-502 (governing petitions for the issuance of a writ of certiorari). We granted certiorari to review the sole issue of "[w]hether the doctrine of forfeiture by wrongdoing requires an overt threat of harm in addition to other conduct designed to procure a witness's silence or absence."

         II.STANDARD OF ...

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