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State v. Sloan

Supreme Court of New Mexico

October 31, 2019

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
MATTHEW SLOAN, Defendant-Appellant.

          APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY Lisa B. Riley, District Judge

          Law Offices of Adrianne R. Turner Adrianne R. Turner Albuquerque, NM for Appellant.

          Hector H. Balderas, Attorney General Walter M. Hart, III, Assistant Attorney General Santa Fe, NM for Appellee

          OPINION

          DAVID K. THOMSON, JUSTICE

         {¶1} This Court's dispositional order reversed Defendant Matthew Sloan's conviction at his first trial based on faulty jury instructions. See State v. Sloan, S-1-SC-34858, ¶ 13, dispositional order (June 23, 2016) (nonprecedential). Defendant now appeals his convictions for burglary and felony murder after a second jury trial. At the second trial, the State presented evidence that Defendant, armed with a rifle and accompanied by two other men, broke into the victim's house to retrieve drugs or money from the victim and that Defendant shot and killed the victim during the burglary. On appeal, Defendant argues that (1) the district court denied him his right to be present and to confront witnesses against him by failing to determine whether he made a valid waiver of his right to be present at three pretrial hearings, (2) he received ineffective assistance from his trial counsel, and (3) the district court committed reversible error by declining to instruct the jury on voluntary manslaughter as a lesser included offense. For the reasons that follow, we affirm Defendant's convictions.

         I. BACKGROUND

         {¶2} Defendant drove from Carlsbad to the victim's house in Artesia with two accomplices, Donald Ybarra (Duck) and Senovio Mendoza (Hoss), to obtain drugs or money to buy drugs from the victim, who ostensibly owed Hoss. Defendant habitually used methamphetamines and testified that he had been using for multiple days at the time the three left for Artesia and that they all smoked methamphetamines throughout the trip.

         {¶3} When the three men first arrived at the victim's house, no one came to the door. They drove around Artesia and made other stops before returning to the victim's house a second time. That time Hoss knocked on and kicked the door while Defendant and Duck waited in the truck. Hoss returned to the truck and told them the victim said to come back later.

         {¶4} The three men then drove to Walmart where they bought beanies that Duck modified to mask their faces. When they returned to the victim's house a third time and Hoss still could not get the victim to open the door, they put the masks on and approached the house. Defendant was armed with a rifle.

         {¶5} Hoss kicked in the door to the victim's house, and Defendant entered the house yelling "Pecos Valley Drug Task Force." Defendant located the victim, pointed the rifle, and yelled, "Get on the floor"! Meanwhile Hoss searched the house. During the robbery, Defendant shot the kneeling victim in his upper-left forehead near the hairline from approximately three feet away, killing him. The three men left the house after the shooting but returned later to retrieve a flashlight. At his second jury trial, Defendant was convicted of and sentenced for felony murder and tampering with evidence. He appeals his convictions. We discuss additional facts relevant to the issues Defendant raises on appeal in context as needed.

         II. DISCUSSION

         A. Rights to Presence and Confrontation

         {¶6} Defendant remained incarcerated prior to trial and was not transported to any of the three pretrial hearings. He argues that he was denied his right to be present and his right to confront the witnesses against him at critical stages of trial during the three pretrial hearings. These hearings involved prosecution motions-in-limine including a motion to qualify an expert witness, a scheduling conference during which counsel and the district court considered whether the judge had a conflict of interest, and a motion to exclude testimony of Defendant's sister. Contrary to Rule 5-612(B)(2) NMRA, the record for each of these hearings lacks a written waiver of Defendant's appearance executed by Defendant and approved by defense counsel and the district court. Instead, defense counsel orally waived Defendant's appearance at each hearing.

         {¶7}Only the hearing concerning qualification of the expert witness warrants substantive legal analysis. We conclude that Defendant was not denied his right to be present or his right to confront the witnesses against him.

         1. Standard of review

         {¶8} Whether a defendant's constitutional right was violated is a question of law that this Court reviews de novo. See State v. Montoya, 2014-NMSC-032, ¶ 16, 333 P.3d 935; see also State v. Boyse, 2013-NMSC-024, ¶ 8, 303 P.3d 830 ("'We review [questions] of statutory and constitutional interpretation de novo.'" (alteration in original) (quoting State v. Ordunez, 2012-NMSC-024, ¶ 6, 283 P.3d 282)).

         2. Defendant's right to be present

         {¶9} "There is no dispute that a criminal defendant charged with a felony has a constitutional right to be present and to have the assistance of an attorney at all critical stages of a trial." State v. Padilla, 2002-NMSC-016, ¶ 11, 132 N.M. 247, 46 P.3d 1247 (citing U.S. Const. amends. VI (guaranteeing an accused "the right . . . to be confronted with the witnesses against him"), XIV (guaranteeing protection of rights by "due process of law"); N.M. Const. art. II, § 14 (guaranteeing an accused the right of a defense "in person" and the right of confrontation)); see also State v. Corriz, 1974-NMSC-043, ¶ 5, 86 N.M. 246, 522 P.2d 793 (observing that it "is the defendant's right to be present in the courtroom at every stage of the trial" but that this right "is not an absolute right"). A defendant bears the burden of proving that a particular stage of a criminal proceeding is "critical," which triggers the constitutional right to be present at that stage. See State v. Torres, 2018-NMSC-013, ¶ 68, 413 P.3d 467 (citing Kentucky v. Stincer, 482 U.S. 730, 747 (1987)).

         {¶10} Torres relies on Stincer concerning what makes a hearing a critical stage of the proceeding. Stincer reasoned that critical stages of a criminal proceeding include any stage in which the defendant's "'presence has a relation, reasonably substantial, to the ful[l]ness of his opportunity to defend against the charge.'" 482 U.S. at 745 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934), overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 2 n.1, 3 (1964)); accord State v. Acuna, 1967-NMSC-090, ¶ 10, 78 N.M. 119, 428 P.2d 658 ("To constitute a critical stage of a criminal proceeding, the particular proceeding or act in question must be one at which, or in connection with which, the accused's constitutionally protected rights may be lost or adversely affected."). Therefore, a particular stage of a criminal proceeding may be critical if "the defendant's presence at the proceeding would [contribute] to the defendant's opportunity to defend himself against the charges," Stincer, 482 U.S at 744 n.17, such that "a fair and just hearing would be thwarted by his absence," Snyder, 291 U.S. at 108. If a particular stage of a criminal proceeding is critical, then the Due Process Clause of the Fourteenth Amendment confers upon the defendant the right to be present at that stage in the proceeding. See Stincer, 482 U.S. at 745 ("[E]ven in situations where the defendant is not actually confronting witnesses or evidence against him, he has a due process right 'to be present in his own person whenever his presence has a relation, reasonably substantial, to the ful[l]ness of his opportunity to defend against the charge.'" (citation omitted)).

         {¶11} Nevertheless, Defendants may waive their right of presence either personally or through counsel. See Hovey v. State, 1986-NMSC-069, ¶ 17, 104 N.M. 667, 726 P.2d 344 ("[E]ven constitutional rights[] may be waived."). Waiver of this constitutional right through counsel generally requires the defendant's express consent, "unless the defendant voluntarily elects to absent himself, or is excluded from the courtroom by reason of 'disruptive, contumacious, or stubbornly defiant' conduct." Id. ¶ 24 (Walters, J., specially concurring) (citation omitted).

         {¶12} Rule 5-612 incorporates a defendant's constitutional right to be present at all critical stages of trial into the New Mexico Rules of Criminal Procedure by prescribing when New Mexico requires the defendant's presence, when and how the defendant may waive that requirement, and perhaps most significant to this case, when New Mexico does not require the defendant's presence. See Rule 5-612; see also State v. Clements, 1988-NMCA-094, ¶ 12, 108 N.M. 13, 765 P.2d 1195 ("A defendant's right to be present during all stages of a criminal trial has its genesis in the sixth amendment's confrontation clause and the fourteenth amendment's due process clause. This right has been incorporated into [Rule 5-612(A) NMRA (1986)]."). Rule 5-612(A) provides that "the defendant shall be present at all proceedings, including the arraignment, all hearings and conferences, argument, the jury trial and during all communications between the court and the trial jury." Notwithstanding the breadth of Rule 5-612(A), Rule 5-612(D) specifies certain situations in which the defendant's presence is not required, including proceedings that involve "only a conference or hearing upon a question of law."

         {¶13} Because the right to be present is protected by the Fourteenth Amendment and incorporated into our rules of criminal procedure, our analysis of this issue is twofold. First, we must determine whether each of the following three pretrial hearings was a "critical" stage of Defendant's criminal proceeding. If any of the three hearings was a critical stage of Defendant's criminal proceeding, then Defendant had a due process right to be present at that hearing. Second, we must determine whether any of the three pretrial hearings involved "only a conference or hearing upon a question of law" because our rules of criminal procedure do not require Defendant to be present at such a conference or hearing. If a hearing was not a critical stage and our rules did not require Defendant's presence, his right to be present was not violated.

         {¶14} Defendant urges us to reverse his conviction, citing State v. McDuffie, 1987-NMCA-077, ¶ 10, 106 N.M. 120, 739 P.2d 989, for the broad proposition that he has a constitutional right to be present at all pretrial hearings "where testimony is to be taken." Defendant maintains that he did not waive that right. The State argues that Defendant's presence was not required at these noncritical stages of the proceedings and that if he was entitled to be present he waived his right to appear. The State also appears to argue that because Defendant waived his appearance through his counsel, this Court should determine that Defendant failed to preserve for appeal the issue of his right to be present. But see Rule 12-321(B)(2)(d) NMRA (stating that a party may "for the first time on appeal" raise an issue concerning a fundamental right); see also State v. Gomez, 1997-NMSC-006, ¶ 31 n.4, 122 N.M. 777, 932 P.2d 1 ("Even if [Defendant]'s contentions before the trial court had failed to preserve the . . . constitutional claim, we could nevertheless consider it because [confrontation] is a fundamental right.").

         {¶15} For reasons discussed next, we conclude that Defendant did not have the right to be present at any of the three pretrial hearings under the Fourteenth Amendment nor did Rule 5-612 require Defendant's presence.

         a. Motion in limine to allow expert testimony

         {¶16} Defendant argues that he had the right to be present at a pretrial hearing in which the State sought to admit Detective Rodriguez as an expert witness in blood spatter analysis and to prohibit the defense from discussing the definition of "reasonable doubt" at trial.[1] Defense counsel appeared telephonically and stated, "I'd like to waive [Defendant]'s appearance at this. This is merely an administrative proceeding to clean up some housekeeping matters." The State indicated that it "anticipated potentially putting on testimony" concerning admission of the blood spatter analyst as an expert witness, and defense counsel reiterated that he waived Defendant's appearance. The blood spatter analyst testified generally about his education, experience, and qualifications but did not testify concerning the facts or substance of the case. The district court qualified the blood spatter analyst as an expert witness for trial subject to the State laying an adequate foundation.

         {¶17} Stincer provides that a critical stage of a proceeding is one in which a defendant's presence contributes to "the defendant's opportunity to defend himself against the charges" and thereby increases "the fairness of the proceeding." See 482 U.S. at 744 n.17, 745. Stincer's facts and procedural posture are instructive on this issue. In Stincer, the defendant was excluded from an in-chambers hearing to determine whether two child witnesses were competent to testify. Id. at 732-33. The defendant's counsel was present at the hearing and had an opportunity to cross- examine the two child witnesses. Id. at 733-34. The questions posed to the child witnesses in that hearing "were directed solely to each child's ability to recollect and narrate facts, to her ability to distinguish between truth and falsehood, and to her sense of moral obligation to tell the truth." Id. at 746. The child witnesses were not asked about the substance of the testimony they would give at trial. Id. at 733, 745-46. The district court found that both child witnesses were competent to testify. Id. at 733. After trial, the defendant appealed his conviction, arguing that his exclusion from the competency hearing violated his due process rights under the Fourteenth Amendment.[2] See id. at 735. Stincer affirmed the conviction because no evidence supported a conclusion that the defendant's "presence at the competency hearing . . . would have been useful in ensuring a more reliable determination as to whether the witnesses were competent to testify." Id. at 747. Further, evidence did not support a conclusion that his presence would have increased the fairness of the proceeding by, for example, "assist[ing] either his counsel or the judge in asking questions that would have resulted in a more assured determination of competency." Id. Therefore the competency hearing in Stincer was not a critical stage of the criminal proceeding, and the defendant did not have a due process right to be present. See id. at 745-46.

         {¶18} In this case, the hearing on whether to qualify the blood spatter analyst as an expert witness is analogous to the competency hearing in Stincer because both hearings were intended to determine whether prosecution witnesses could testify against the defendant at trial and neither hearing addressed the substance of that testimony. In this case, the district court heard testimony concerning the qualifications and background of the blood spatter analyst and made a preliminary determination that his testimony would be admissible at trial as expert testimony. See Rule 11-104(A) NMRA ("The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible."); see also State v. Downey, 2008-NMSC-061, ¶ 25, 145 N.M. 232, 195 P.3d 1244 (describing the district court's gatekeeper role in qualifying an expert to ensure that admitted evidence is relevant and reliable); State v. Fry, 2006-NMSC-001, ¶¶ 54-57, 138 N.M. 700, 126 P.3d ...


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