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State v. Gutierrez

Supreme Court of New Mexico

August 30, 2019

STATE OF NEW MEXICO, Plaintiff-Appellee,
DAVID GUTIERREZ II, Defendant-Appellant.

          APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY Drew Douglas Tatum, District Judge

          Stephen D. Aarons Aarons Law Firm PC Santa Fe, NM for Appellant

          Hector H. Balderas, Attorney General Marko David Hananel, Assistant Attorney General Santa Fe, NM for Appellee

          James Walker Boyd Carter B. Harrison Peifer, Hanson & Mullins, P.A. Albuquerque, NM for Amicus Curiae, New Mexico Criminal Defense Lawyers Association



         {¶1} In 2002, Defendant David Gutierrez shot and killed a man. Gutierrez disclosed this fact to his wife and threatened to kill her if she ever told anyone about the murder. They divorced a short time later. Gutierrez remarried and also told his second wife about the murder. By the time of his 2017 murder trial, Gutierrez was estranged from his second wife. At trial, he invoked the spousal communication privilege to preclude both women from testifying about his role in the killing. Gutierrez's invocation of the spousal communication privilege prompts us to question its continued viability in New Mexico.

         {¶2} We conclude that the spousal communication privilege has outlived its useful life and prospectively abolish it. As abolishment is prospective, we must evaluate its applicability in Gutierrez's case. We conclude that certain evidence was admitted at Gutierrez's trial in violation of the privilege, but conclude that the error was harmless. We reject all other arguments advanced by Gutierrez and affirm his convictions.

         I. BACKGROUND

         {¶3} On April 8, 2002, Jose Valverde was found dead in a boxcar he used as his home in Clovis, New Mexico. He had been shot in the head with a shotgun. In July 2015, more than thirteen years later, a grand jury indicted Gutierrez for the murder. Gutierrez's trial commenced in 2017.

         {¶4} Gutierrez's ex-wife Nicole Cordova offered the following testimony at trial. She married Gutierrez in 2002, and the marriage lasted only two years. The victim, her uncle, had raped her several times when she was thirteen or fourteen years old. She told Gutierrez about the rapes some months before the victim was killed, and Gutierrez told her "not to worry about anything anymore." At the time the victim was killed, she and Gutierrez were living with his parents. On the day of the murder, Gutierrez left home for about a half hour and was visibly upset when he returned. Gutierrez told her that he "took care of it," and although he did not explain further, she knew what had happened: Gutierrez had killed the victim. Gutierrez told her that he needed help to find a shotgun shell and then they drove to the victim's boxcar. When she entered the boxcar, she saw that it was in disarray and that the victim's body was face down on the floor. She sifted through some beer cans, found a shotgun shell, and then walked outside. After she and Gutierrez returned home, he put the clothes and shoes he had been wearing into a bag and left with his father and brother to dispose of them. Gutierrez later threatened that she would suffer the same fate as the victim if she ever told anyone about what happened. The police questioned her on the day of the murder but she lied to them and never told anyone about Gutierrez's conduct or what had occurred because she was afraid of him. The police did not contact her again until a couple of years before trial when she finally told the truth.

         {¶5} Gutierrez's second wife, Evelyn Franco, also testified at Gutierrez's trial and offered the following testimony. She married Gutierrez in May 2006. At the time of trial, they were still legally married but had not spoken in years. In early 2006, she and Gutierrez lived with his parents. There was frequent fighting and arguing in the household. During these fights, Gutierrez's parents would threaten to "send him away for the rest of his life." When she asked Gutierrez what his parents were talking about, he informed her that he had committed a murder. He elaborated that his ex-wife's uncle had molested her, so he went to his house, walked up to where he was laying on the couch, and fired a shotgun into his face killing him.

         {¶6} The jury found Gutierrez guilty of willful, deliberate, and premeditated first-degree murder in violation of NMSA 1978, Section 30-2-1(A)(1) (1994). The district court sentenced Gutierrez to life imprisonment plus one year. He appeals directly to this Court. See N.M. Const. art. VI, § 2; Rule 12-102(A)(1) NMRA.


         {¶7} Gutierrez raises five issues: (A) violation of the spousal communication privilege, (B) the sufficiency of the evidence to support the convictions, (C) violation of his right to testify before the grand jury, (D) destruction of evidence favorable to the defense, and (E) ineffective assistance of counsel. We address each issue in turn. Because we abolish the spousal communication privilege prospectively, we must also address its applicability in Gutierrez's case. Accordingly, the privilege issue is addressed in two parts.

         A. Spousal Communication Privilege

         {¶8} Rule 11-505(B) NMRA, New Mexico's spousal communication privilege, provides that "[a] person has a privilege to refuse to disclose, or to prevent another from disclosing, a confidential communication by the person to that person's spouse while they were married." This privilege "prohibits one spouse from testifying as to conversations or communications with the other spouse made in confidence during their marriage." 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, § 505.03[1], at 505-5 (Mark S. Brodin, ed., Matthew Bender 2d ed. 2018). The privilege protects confidential communications at the time they are made and may, therefore, be invoked after the termination of the marital relationship. See id.

         1. Continued viability of the spousal communication privilege in New Mexico

         a. Evidentiary privileges and this Court's authority over them

         {¶9} This Court's constitutional authority to recognize or limit evidentiary privileges derives from the power of superintending control set forth in Article III, Section 1 and Article VI, Section 3 of the New Mexico Constitution. See Estate of Romero ex rel. Romero v. City of Santa Fe, 2006-NMSC-028, ¶ 7, 139 N.M. 671, 137 P.3d 611. This Court determines whether and to what extent an evidentiary privilege should be permitted to "interfere with the orderly and effective administration of justice." See Ammerman v. Hubbard Broad., Inc., 1976-NMSC-031, ¶¶ 7, 17, 89 N.M. 307, 551 P.2d 1354 (internal quotation marks and citation omitted). For this reason, the existence of NMSA 1978, Section 38-6-6 (1973) has little bearing upon whether New Mexico courts should continue to recognize the spousal communication privilege. This question is one bearing upon practice and procedure and, therefore, is one over which this Court has ultimate authority. See Albuquerque Rape Crisis Ctr. v. Blackmer, 2005-NMSC-032, ¶ 11, 138 N.M. 398, 120 P.3d 820 ("[I]f a privilege is not recognized or required by the New Mexico Constitution or court rule, then the Legislature may not enact such a privilege because to do so would conflict with Rule 11-501."); see also Ammerman, 1976-NMSC-031, ¶ 15 ("Our constitutional power . . . of superintending control over all inferior courts carries with it the inherent power to regulate all pleading, practice and procedure affecting the judicial branch of government." (internal quotation marks and citation omitted)). Whether our courts should continue to recognize any given privilege requires a balancing of competing concerns of the broadest kind.

         {¶10} The administration of justice is coextensive with the pursuit of truth, and but for certain well-defined exceptions, all persons can be compelled to appear in court and give testimony to accomplish this end. See Rios v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting). ("[T]he underlying aim of judicial inquiry is ascertainable truth[.]"). Limitations on this fundamental rule shall be recognized "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence" produces a "public good" that transcends "the normally predominant principle of utilizing all rational means for ascertaining truth." Id.

         {¶11} Similarly, "[t]he purpose of the rules of evidence is to ascertain the truth by determining what evidence is admissible during the trial." Pincheira v. Allstate Ins. Co., 2008-NMSC-049, ¶ 21, 144 N.M. 601, 190 P.3d 322. Consistent with this purpose, all persons generally are required to "disclose any information" that they "may possess that is relevant to a case pending before a court of justice." Estate of Romero, 2006-NMSC-028, ¶ 7 (internal quotation marks and citation omitted). An evidentiary privilege constitutes an exception to this general rule and permits a person to withhold probative evidence. See id.

         {¶12} Evidentiary privileges "'are not lightly created nor expansively construed'" because "'they are in derogation of the search for truth.'" Albuquerque Rape Crisis Ctr., 2005-NMSC-032, ¶ 18 (quoting United States v. Nixon, 418 U.S. 683, 709-10 (1974)). We thus consider whether the spousal communication privilege promotes "sufficiently important interests to outweigh the need for probative evidence." See Trammel v. United States, 445 U.S. 40, 51 (1980). In doing so, we examine both the justifications advanced in support of the privilege and criticisms of it. Before doing that, one final comment is necessary.

         {¶13} Secondary literature discussing the spousal privileges abounds. That literature illuminates much. The earliest iterations of the spousal privilege can be traced to feudal England. 8 John Henry Wigmore, Evidence in Trials at Common Law, § 2227, at 211 (McNaughton rev. 1961). The privilege took different forms at different points in history, evolved over time, and has not been discussed in uniform terminology. 25 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure: Evidence, § 5572, at 463-64 (1989) (explaining that the spousal privileges have been given "a wide variety of names" and lamenting the lack of uniformity); 2 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence, § 5:39, at 729 (4th ed. 2013) (discussing the spousal witness privilege); Trammel, 445 U.S. at 44 (discussing the spousal disqualification rule). This present case is not the first time New Mexico courts have questioned the utility and validity of the spousal privileges. See State v. Howell, 1979-NMCA-069, ¶ 9, 93 N.M. 64, 596 P.2d 277 (citing with approval authorities doubting the validity of the spousal privilege then in existence in New Mexico); Richard A. Gonzales, Evidence, 11 N.M. L. Rev. 159, 174-75 (1981) (discussing amendments to New Mexico's rules of evidence that eliminated one iteration of the spousal privilege).

         {¶14} The existence of abundant secondary literature is no justification for us to write yet another treatise on the subject of the history and development of the spousal privilege we have today. Our focus is specific. Our task discrete. We are here concerned with the spousal communication privilege as it exists in New Mexico and to the merits of the policy justifications offered in support of the privilege as measured from the ground upon which we stand. While it is necessary to consider some aspects of the history of spousal privilege to understand the purpose of the privilege we have today, we discuss that history only to the limited extent necessary. Readers interested in legal history as an end in itself may explore-as we have-the many secondary sources cited throughout the discussion that follows.

         b. Justifications for the spousal communication privilege

         {¶15} More than one hundred and eighty years ago, the United States Supreme Court described the policy concerns giving rise to the spousal communication privilege in the following manner:

This rule is founded upon the deepest and soundest principles of our nature. Principles which have grown out of those domestic relations, that constitute the basis of civil society; and which are essential to the enjoyment of that confidence which should subsist between those who are connected by the nearest and dearest relations of life. To break down or impair the great principles which protect the sanctities of husband and wife, would be to destroy the best solace of human existence.

Stein v. Bowman, 38 U.S. 209, 223 (1839). The principles articulated in Stein developed into what most commentators characterize as the traditional justification for the privilege: it "is needed to encourage marital confidences, which confidences in turn promote harmony between husband and wife." 1 Kenneth S. Broun, McCormick on Evidence, § 86, at 523 (7th ed. 2013); see also 25 Wright & Graham, supra, § 5572, at 518-19 (explaining that the rationale set forth in Stein has "been only slightly clarified in the ensuing 150 years"); see Wolfle v. United States, 291 U.S. 7, 14 (1934) ("The basis of the immunity given to communications between husband and wife is the protection of marital confidences, regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails."). The traditional justification for the privilege is considered to be an instrumental or utilitarian rationale because it views the privilege as a way to promote "the public good" by protecting the marital relationship. See R. Michael Cassidy, Reconsidering Spousal Privileges After Crawford, 33 Am. J. Crim. L. 339, 358 (2006) (internal quotation marks omitted).

         {¶16} In addition to the traditional justification, a variety of humanistic and privacy arguments have been offered to support the spousal communication privilege. See 1 Broun, supra, § 72, at 467-68; see also e.g., Ryan v. Comm'r of Internal Revenue, 568 F.2d 531, 543 (7th Cir. 1977) (recognizing that the spousal communication privilege protects "the privacy interests of husband and wife"). Unlike the traditional justification, which views the privilege "as a means of promoting the public good," the privacy and humanistic "theories focus on the value of protecting individual rights." Harvard Law Review Association, Developments in the Law: Privileged Communications, 98 Harv. L. Rev. 1450, 1583 (1985); see also 1 Broun, supra, § 72, at 468 ("[P]rivacy interests in society are deserving of protection by privilege irrespective of whether the existence of such privileges actually operates substantially to affect conduct within the protected relationships.").

         {¶17} One such justification offered for the spousal communication privilege is that it eliminates the "'natural repugnance'" that would necessarily flow from forcing a person to testify against a spouse. See 1 Edward J. Imwinkelried, The New Wigmore: A Treatise on Evidence, § 2.3, at 136-37 (2d ed. 2010) (quoting 8 John Henry Wigmore, Evidence in Trials at Common Law, § 2228, at 217 (1961)); see also 2 Mueller & Kirkpatrick, supra, § 5:39, at 731 ("[P]itting spouse against spouse . . . is deeply offensive to widely shared values."); 1 Broun, supra, § 86, at 524 ("All of us have a feeling of indelicacy and want of decorum in prying into the secrets of husband and wife."). Leading treatises surmise that this "matter of emotion and sentiment" has, in fact, been "the prime influence in creating and maintaining" the spousal communication privilege. 1 Broun, supra, § 86, at 524.

         {¶18} The protection of informational privacy and avoidance of unwarranted governmental intrusion are offered as alternative justifications for the privilege. See, e.g., Mark Reutlinger, Policy, Privacy, and Prerogatives: A Critical Examination of the Proposed Federal Rules of Evidence as They A fect Marital Privilege, 61 Calif. L. Rev. 1353, 1371 (1973) ("[U]tter freedom of marital communication from all government supervision, constraint, control or observation [is] a psychological necessity to successful marriage." (internal quotation marks and citation omitted)). This "rationale recognizes that it is morally repugnant to require the disclosure of certain private information or to force an otherwise honest and decent person to choose among betraying his or her spouse, lying, or going to jail." Mikah K. Story, Twenty-First Century Pillow-Talk: Applicability of the Marital Communications Privilege to Electronic Mail, 58 S.C. L. Rev. 275, 315 (2006).

         One federal court quite persuasively made the case for the privacy justification for the privilege.

Over at least the past decade, the circle of privacy surrounding each of us has drawn smaller with each new governmental incursion and each new technological advance. Courts have sought to preserve inviolable some small island of privacy as a refuge for the human spirit where government may not intrude. Here the question is whether one such sanctuary, protected by the common law for centuries, shall be breached, rendering the secrets told to wives by husbands fair game for government investigators.

United States v. Neal, 532 F.Supp. 942, 946 (D. Colo. 1982), a f'd, 743 F.2d 1441 (10th Cir. 1984); see also 25 Wright & Graham, supra, § 5572, at 524 (expressing the idea that "limitation on government power . . . is inherently valuable and ought to be fostered for its own sake"). This privacy rationale carries significant weight.

         {¶19} The United States Supreme Court has recognized that married people have a constitutional right to privacy in their intimate relationships. See Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) (concluding that the "right to privacy" in the marital relationship is "older than the Bill of Rights"). Thus, commentators have relied on this right to privacy to conclude that "the abolition of the [spousal communication] privilege would offend the spirit of the constitutional guarantees." 25 Wright & Graham, supra, § 5572, at 528 (internal quotation marks and citation omitted).

         {¶20} Finally, a "humanistic theory based on personal autonomy" has been utilized to evaluate privileges generally. See 1 Imwinkelried, supra, § 1.2.1, at 16 (arguing that the recognition of evidentiary privileges for certain fundamental relationships "promotes personal autonomy in the sense of decisional privacy"); see also Thomas G. Krattenmaker, Testimonial Privileges in Federal Courts: An Alternative to the Proposed Federal Rules of Evidence, 62 Geo. L. J. 61, 87 (1973) (arguing that the "recognition of a right to privacy serves to promote and protect personal autonomy"). Under this line of thought, personal autonomy is accepted as an "ultimate value" in a "democratic society." 1 Imwinkelried, supra, § 1.2.1, at 16; see Krattenmaker, supra, at 88-89 (explaining that the protection of privacy supports "individual political freedom," which in turn supports democracy); see also 1 McCormick, supra, § 72, at 468 (protecting private communications enables people "to make more intelligent, independent life preference choices"). Whether this line of thought has figured into or has any value to the debate about the benefits of the spousal communication privilege is an open question. See 1 McCormick, supra, § 72, at 468 ("Given [the] comparatively recent origin [of the humanistic, autonomy rationales, they] probably have not operated as a conscious basis for either the judicial or legislative creation of existing privileges.").

         c. Criticisms of the spousal communication privilege

         {¶21} When scrutinized, the traditional justification for the spousal communication privilege is not as forceful as it may initially seem. One of its principal weaknesses is that it rests on two untested assumptions: that (1) married people know the privilege exists, and (2) they rely on it when deciding how much information to share. See 1 Broun, supra, § 86, at 523. Critics argue "that there is no empirical evidence to support [these] factual assumptions." 25 Wright & Graham, supra, § 5572, at 532-33.

         {¶22} As to the first of these assumptions, it is likely that most people are entirely unaware of the privilege. See, e.g., Robert M. Hutchins & Donald Slesingert, Some Observations on the Law of Evidence Family Relations, 13 Minn. L. Rev. 675, 682 (1929). The United States Supreme Court, agreeing with this assessment, omitted the spousal communication privilege from the Court's proposed rules of evidence. See Rules of Evidence for United States Courts and Magistrates, 56 F.R.D. 183, 246, Advisory Committee's Note to Rule 505 (1973) ("Nor can it be assumed that marital conduct will be affected by a privilege for confidential communications of whose existence the parties in all likelihood are unaware.").

         {¶23} Even if married people are aware of the spousal communication privilege, it is unclear whether the availability of the privilege has any effect on the extent to which spouses communicate. 1 Broun, supra, § 86, at 523 (observing that "the contingency of courtroom disclosure" is not "in the minds of [spouses] in considering how far they should go in their secret conversations"). This point, explained in greater detail in the succeeding paragraphs, significantly undermines the second assumption underlying the traditional justification.

         {¶24} In a relationship involving a layperson and a professional, the absence of a privilege protecting confidentiality could chill beneficial communication because the layperson might refuse to communicate with the professional. See, e.g., Fisher v. United States, 425 U.S. 391, 403 (1976) (explaining that the attorney-client privilege "protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege"); Albuquerque Rape Crisis Ctr., 2005-NMSC-032, ¶ 16 ("Without the psychotherapist-patient privilege, many individuals would likely be reluctant to seek treatment."). And in a professional relationship that depends heavily on confidentiality, "there is an evidentiary wash-while evidence might be excluded at trial pursuant to a privilege objection, but for the privilege the evidence would not have come into existence." 1 Imwinkelried, supra, § 3.2.3, at 163 (footnote, internal quotation marks, and citation omitted); e.g., Swidler & Berlin v. United States, 524 U.S. 399, 408 (1998) ("[T]he loss of evidence admittedly caused by the [attorney-client] privilege is justified in part by the fact that without the privilege, the client may not have made such communications in the first place."); Ja fee v. Redmond, 518 U.S. 1, 11-12 (1996) (concluding that any evidentiary benefit of rejecting the psychotherapist-patient privilege would be modest because the absence of the privilege would chill communications). Unlike communication between a professional and a layperson, communication between spouses does not depend on a legal guarantee of confidentiality and does not come into existence because of that guarantee.

         {¶25} Spouses communicate openly with one another due to the "trust they place in the loyalty and discretion of each other," not because the privilege shields their communications from future disclosure in court. 1 Broun, supra, § 86, at 523. Additionally, most people are unlikely to alter their behavior based on the privilege because most people seldom appear in court and do not tailor their conversations around what may or may not be privileged. See id. at 523-24 ("In the lives of most people appearance in court as a party or a witness is an exceedingly rare and unusual event, and the anticipation of it is not one of those factors which materially influence in daily life the degree of fullness of marital disclosures."). Because neither assumption underlying the traditional justification survives scrutiny, the traditional justification for the privilege seems entirely unfounded.

         {¶26} As with the traditional justification, questions have been raised as to whether the privacy and humanistic rationales are sufficient to justify recognition of the spousal communication privilege. For example, Wigmore argued that the natural repugnance people feel about compelling one spouse to testify against the other is nothing "more than a sentiment" and that sentimental feelings do not justify interference with courts' truth-seeking function. 8 Wigmore, supra, § 2228, at 217; see id. ("[T]he law . . . does not proceed by sentiment, but aims at justice."); see also Edmund M. Morgan, Foreword, Model Code of Evidence, A.L.I., at 5 (1942) (arguing that "a mere sentiment or an outgrown theory as to relative social values" cannot justify the suppression of "valuable evidence"). Others have "argued that married couples no longer care about privacy as it was supposed they did in an agrarian society." 25 Wright & Graham, supra, § 5572, at 538. The increasing frequency with which modern Americans share their marital and familial problems with a public audience provides "contemporary confirmation for the claim that marital privacy is no longer an esteemed value." See id. at 539.

         {¶27} To the extent that protecting marital privacy is a legitimate goal of a rule of evidence, the spousal communication privilege has been criticized as inadequate and under-inclusive. As the privilege has been construed to protect only those "interactions through which one spouse intends to convey a message to the other," the privilege does not apply to "some of the most personal and intimate interactions between spouses." Amanda H. Frost, Updating the Marital Privileges: A Witness-Centered Rationale, 14 Wis. Women's L.J. 1, 25 (1999). For instance, the privilege would not permit a spouse to decline to testify as to whether his or her spouse uttered inculpatory remarks in their sleep or if they exhibited other irrepressible behaviors like nervousness, tiredness, or illness. Id. This is significant as "it is precisely at these private moments when the social mask is removed, and a spouse engages in unguarded, unfiltered behavior[.]" Id.

         {¶28} This point highlights the obvious fact that marriage is a very different endeavor and involves communication quite distinct from that which occurs in a relationship between laypersons and professionals, like doctors and lawyers. Married couples necessarily engage in a nearly unlimited range of possible communicative acts the spousal communication privilege might never reach. Communication between laypersons and professionals, on the other hand, "are essentially and almost exclusively verbal in nature, quite unlike marriage." Advisory Committee's Note to Rule 505, 56 F.R.D. at 246. So, while the efficacy of the privileges protecting the communications between laypersons and professionals seems quite sensible and self-evidently efficacious, the efficacy of the spousal communication privilege to protect and foster frank communication between spouses appears, in contrast, quite doubtful.

         {¶29} Critics have also looked to the ancient origins of the spousal communication privilege and its disparate gender impact to argue that the privilege has outlived its purpose. See 25 Wright & Graham, supra, § 5572, at 466 (observing that modern theorists have attacked the spousal privileges and the familial privileges more generally as relics of "ancient origins" that should be a "source of scorn rather than admiration" and derided these "sentimental relics" as patently incompatible with the modern and "changed social context" of present society (internal quotation marks and citation omitted)). Blackstone described the legal principles-which by contemporary values can only be deemed misogynistic-that coincided with the creation of the privilege as follows: "By marriage the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage or at least is incorporated or consolidated into that of the husband." Id. at 490 (internal quotation marks omitted) (quoting 1 William Blackstone, Commentaries on the Laws of England, 442 (1768)). These words make obvious why some commentators suggest that "the most serious concern about the privilege is its disparate gender impact[.]" Milton C. Regan, Jr., Spousal Privilege and the Meanings of Marriage, 81 Va.L.Rev. 2045, 2051 (1995).

         {¶30} Despite drastic changes in law and society since Blackstone's day, "the spousal communication privilege perpetuates the role of male domination in the marriage because a husband usually invokes the privilege to prevent his wife's disclosure of confidential communications, thereby benefitting men more often than women." Story, supra, at 280; see also Regan, supra, at 1587 & n.170 (noting that "in practice, marital privileges are more likely to protect male confidences than female confidences" and ...

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