IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO STATE OF NEW MEXICO, Plaintiff-Appellant, VS. SHAUN WILKINS, Defendant-Appellee, No. 20,757 Torrance County CR-96-92.
NOTICE PROPOSED SUMMARY DISPOSITION
Note: This case has been assigned to the SUMMARY CALENDAR pursuant to Rule 12-210(D) NMRA 1999. This is a proposal of how the Court views the case. It is not a final decision. You now have twenty (20) days to file a memorandum telling the Court any reasons why this proposed disposition should or should not be made. See Rule 12-210(D) NMRA 1999.
You are hereby notified that the Record Proper was filed in the above-entitled cause on October 26, 1999.
Summary affirmance is proposed.
Issue: We review the trial court’s decision regarding the admissibility of the hearsay statements of Lawrence Nieto for an abuse of discretion. See State v. Torres, 1998-NMSC-052, 115, 126 N.M. 477, 971 P.2d 1267. We find an abuse of discretion only when a decision is clearly against the logic and effect of the facts and circumstances before the trial court. See State v. Vallejos, 122 N.M. 318, 924 P.2d 727, 735 (Ct. App. 1996). 113.
Here, the trial court reviewed and parsed the statements as required by Williamson v. United States, 512 U.S. 594 (1994), and Torres, 1998-NMSC-052 par. 13. It determined that there were some portions of the statements that were either inculpatory to Nieto or facially-neutral, but contextually-incriminating to Nieto. The trial court found that Nieto would have believed that his statements were at least partially against his penal interest, but that the overall thrust of the interview was to minimize his own involvement and maximize the involvement of two other co-defendants, including Defendant here. The trial court found that the statements did not possess indicia of reliability by virtue of their inherent trustworthiness. Thus, it concluded, the statements were not admissible under the hearsay rule. It further concluded that the statements would violate Defendant’s Sixth Amendment right to confront and cross-examine witnesses against him.
The State argues that the recent cases regarding the required analysis for admissibility of such statements did not change the law in New Mexico. It contends that the trial court was always required to undergo a fact-intensive inquiry to determine whether there were sufficient indicia of reliability to permit admission. Thus, it argues, because the trial court admitted the statements in the first trial, the statements should remain admissible.
We propose to disagree with the State’s argument. We agree that the trial court was always required to engage in a fact-intensive inquiry regarding indicia. of reliability of the hearsay statements. See State v. Earnest, 106 N.M. 411, 412, 744 P.2d 539, 540 (1987). Williamson, however, made it clear that a statement needed to be examined, not as a report or narrative, but as a single declaration or remark. Williamson, 512 U.S. at 599. Thus, a statement needs to be broken down into individual declarations and the admissibility of each examined. Clearly, the trial court did not do such an examination before the first trial. Therefore, its earlier examination did not satisfy the analysis required by law and cannot now be relied upon as being correct.
The State also sought to distinguish Lilly v. Virginia, 119 S.Ct. 1887 (1999), upon which the trial court relied in excluding the entire statement as there was nothing presented to rebut the presumption of unreliability of such a confession. It argues that Nieto’s statement was made as a “material witness” in protective custody and, thus, did not carry the presumption of unreliability. Cf. State v. Gonzales, 1999-NMSC-033, 134, Vol. 38, No. 37 SBB 14, 18. The trial court found that Nieto knew at the time of the interview that he was suspected by police as having been present at the scene of the crimes and that the police may have thought he was implicated. Nieto was advised of his rights, waived them and gave the statement. The circumstances under which the statements were made here were very like those in Lilly, where a co-defendant made a confession to police after being apprehended, brought into custody, advised of his rights and faced with interrogation. Therefore, we believe that the trial court properly considered the decision in Lilly when it determined that the entire statement made by Nieto would be excluded.
We are unconvinced by the State’s arguments that Nieto’s entire statement subjected him to criminal liability. It argues that he did not minimize or shift blame regarding his knowledge or participation in the crimes. Further, it argues that the indicia of reliability are met by the fact that a reasonable person would not have made such statements if they were not true. The trial court determined otherwise and we do not find an abuse of discretion in such a decision. The trial court’s order shows that it carefully reviewed the entire statement and made factual determinations regarding indicia of reliability.
Finding no abuse of discretion, we propose to affirm the exclusion of the statements made by Nieto, so long as he is unavailable to testify at trial.
/s/ A. Joseph Alarid, Judge
cc: Stephen D Aarons, Counsel for Defendant-Appellant Wilkins
