May 15, 2019- State of New Mexico v. Peter Martinez, No. A-1-CA-35640

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 v. 	No. A-1-CA-35640
5 PETER MARTINEZ,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Briana H. Zamora, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	Laurie K. Blevins, Assistant Attorney General
12 Albuquerque, NM
13 	for Appellee
14 L. Helen Bennett, P.C.
15 	L. Helen Bennett
16 Albuquerque, NM
17 for Appellant
18
19 BOGARDUS, Judge.
MEMORANDUM OPINION
20 	{t} 	Defendant Peter Martinez appeals his conviction, following a jury trial, of
21 	criminal sexual contact of a minor (child 13-18) (person and position of authority).
22 Defendant contends that (1) the district court deprived him of his Sixth Amendment
Court of Appeals of New Mexico
Filed 5/15/2019 9:26 AM

1 right to confront witnesses by admitting the results of DNA testing without the
2 testimony of the police officer who collected samples of Defendant's DNA; and (2)
3 there was insufficient evidence to support Defendant's conviction based on his
4 alleged status as a "person in position of authority." Because we 	agr~e 	with
5 Defendant's first argument, we reverse without reaching the merits of his second.
6 BACKGROUND
7 	{2} 	The events leading to Defendant's charges began on New Year's Eve of 2010.
8 Defendant's sister, Rachel, asked Defendant to watch her fifteen-year-old daughter,
9 D.H., 	that 	evening. 	Rachel 	was 	scheduled to 	work the 	night shift 	and 	felt
10 uncomfortable leaving D.H. home alone. Defendant agreed to the request, and
11 	Rachel dropped D.H. off at Defendant's apartment.
12 {3} 	D.H. testified at trial as follows. Soon after her mother left, D.H. asked
13 	Defendant for liquor. Because he had only beer and she wanted a stronger drink, the
14 two went to a grocery store, where Defendant bought rum with money D.H. gave
15 	him. After returning to the apartment, D.H. started to drink heavily. Eventually, she
16 fell asleep. The next thing she remembered was waking up on the couch, clothed in
17 pajamas, with Defendantpositioned over her. Defendant's mouth was on D.H.'s
18 breasts, which he was also caressing with his hands. She asked Defendant what he
19 was doing, and he immediately got up and walked away. The following morning,
2

1 D.H. left Defendant's apartment and proceeded to a nearby street comer to wait for
2 her mother, who arrived shortly thereafter.
3 {4} 	By then, police had been called to the scene. The first officer to arrive arrested
4 Defendant and placed him in the back of a patrol unit. Another officer arrived
5 minutes later and spoke with D.H. D.H. then proceeded directly to a sexual assault
6 nurse examiner's (SANE) office for an examination.
7 {5} 	The SANE who examined D.H. testified at trial that she had swabbed D.H.
8 with Q-tips in various places of her body-including the inside of her cheek, her
9 breasts, and her genitals-to collect DNA samples. The SANE also testified that she
10 packaged the Q"'.tip swabs in envelopes, sealed the envelopes, 	and- tagged the
11 	envelopes into evidence.
12 	{6} 	A DNA analyst from the Albuquerque ~olice Department (APD) crime lab
13 	testified at trial as follows. Through her analysis of the evidence collected by the ·
14 	SANE, the DNA analyst determined that there was no sperm or semen on the vaginal
15 	swab, but that there was saliva on the nipple and breast swabs. The DNA analyst
16 found DNA from two individuals, one of whom she identified as D.H., on the nipple
17 and breast swabs. Later, the DNA analyst received a DNA sample on a swab labeled
18 as taken from Defendant. She compared the DNA from that sample to the DNA of
19 the then-unknown second individual. They matched.
3

1 {7} 	One week before trial was scheduled to begin, the State add~d Of~cer Chad
2 Stuart of the APD Criminalistics Unit to its witness list. The State identified Officer
3 Stuart as the person who collected a sample of Defendant'::; DNA with a buccal swab
4 and who tagged the swab into evidence. Officer Stuart had been left off the original
5 witness list in error. The district court excluded Officer Stuart's testimony because
6 the State's disclosure of him was untimely.
7 	{8} 	During trial, and based on the fact that Officer Stuart would not be permitted
8 to testify, Defendant asked that the court (1) suppress testimony about the DNA
9 sample purportedly taken from him by Officer Stuart, or, at least, its connection to
10 Defendant; and (2) bar the DNA analyst, whom the State planned to call as a witness,
11 	from testifying. Outside the presence of the jury, Defendant argued that the DNA
12 analyst could not testify to the proper collection or preservation of the sample Officer
13 	Stuart collected, and, thus, a complete chain of custody could not be established.
14 Given Officer. Stuart's court-ordered absence 	as 	a witness,_ Defendant argued,
15 	allowing 	testimony 	about 	a 	sample 	Officer 	Stuart 	collected 	would 	violate
16 Defendant's confrontation right.
17 	{9} 	The State countered that Defendant's confrontation right was not at issue.
18 Rather, the State argued, the question was one of admissibility related to the chain
19 	of custody associated with the sample collected from Defendant and, accordingly,
20 could be resolved by the district court in its discretion.
4

1 {to} 	Agreeing with the State that the guiding consideration was not one 	of
2 confrontation but instead was a "foundational" question relating to the "chain of
3 custody[,]" the district court, still outside the presence of the jury, heard testimony ·
4 from the DNA analyst about her handling of the samples collected by the SANE.
5 The court found that the State sufficiently established a chain of custody of the
6 sample Officer Stuart collected. At trial, the DNA analyst was allowed to testify
7 about the SANE-collected DNA sample and the results of her DNA analysis, which
8 necessarily consisted of a comparison to the sample Officer Stuart collected.
9 DISCUSSION
10 I.
11
12 	{11}
We Decline to Overrule State v. Carmona, 2016-NMCA-050, 371 P.3d
1056
On· appeal, Defendant maintains that his confrontation right was violated by
13 	the 	admission 	of testimony 	about the 	DNA 	sample 	Officer· Stuart collected.
14 Defendant's argument is premised on his assertions that Officer Stuart was a witness
15 	against him and that Defendant had no opportunity to confront him. Defendant relies
16 largely on Carmona, which we decided after his judgment was entered and which
17 interpreted recent Confrontation Clause precedent from the United States Supreme
18 Court and our Supreme Court.
19 	{12} 	In response, the State concedes that Carmona applies and acknowledges that
20 following it would require reversal of Defendant's conviction. The State then asks
21 	this Court to depart from Carmona. The State cites State v. Pieri, 2009-NMSC-019,
5

1 146 N.M. 155, 207 P.3d 1132, which sets forth the four factors that an appellate
2 court must consider when deciding whether to overturn precedent. Those factors are:
3 	1) whether the precedent is so unworkable as to be intolerable; 2)
4 	whether parties justifiably relied on the precedent so that reversing it
5 	would create an undue hardship; 3) whether the principles of law.have
6 	developed to such an extent as to leave the old rule no more than a
7 	remnant of abandoned do.ctrine; and 4) whether the facts have changed
8 	in the interval from the old rule to reconsideration so as to have robbed
9 " 	the old rule of justification.
10 Id. , 21 (internal quotation marks and citations omitted). The State then asserts that
11 	Carmona has created an unworkable rule, as contemplated by the first factor.
12 {13} 	The principle of stare decisis weighs against overturning Carmona. Stare
. 13 	decisis "dictates adherence to precedent" to "promote[] the evenhanded, predictable,
14 and 	consistent 	development 	of legal 	principles, 	foster[] 	reliance 	on judicial
15 	decisions, and contribute[] to the actual and perceived integrity of the judicial
16 process.".Padilla v. StateFarmMut. Auto. Ins. Co., 2003-NMSC-011,, 7, 133 N.M.
17 661, 68 P.3d 901 (internal quotation marks and citation omitted). Stare decisis "lies
18 	at the very core of the judicial process of interpreting and announcing law." Id
19 (internal 	quotation 	marks 	and 	citation 	omitted). 	Accordingly, 	we 	require 	a
20 "compelling" reason to overrule a case. Id The State offers no such compelling
21 	reason.
22 	{14} 	The State criticizes Carmona' s .rationale, but the Pieri factors do not prompt
23 	us to consider the quality of reasoning underlying Carmona. See Pieri, 2009-NMSC-
6

1 019, 121. Instead, we may consider whether precedent is "unworkable," which
2 differs from "badly reasoned." Id.; see also Payne v. Tennessee, 501 U.S. 808, 827
3 (1991) (distinguishing "unworkable" from "badly reasoned" in stating that the court
4 will consider abandoning precedent when "governing decisions are unworkable or
5 are badly reasoned" (emphasis added)).
6 	{15} 	Even assuming that poor reasoning alone was cause to overturn our precedent,
7 we would not overturn Carmona on that basis, because we remain confident in its
8 reasoning. We arrived at our holding in Carmona through an extensive review of the
9 United States Supreme Court's recent Confrontation Clause cases and 	of our
10 	Supreme Court's distillation of those cases. See Carmona, 2_016-NMCA-050, 113
11 	(noting that "[o]ur analysis of modem Confrontation Clause jurisprudence points
12 squarely" to our conclusion). We decided Carmona unanimously, and our Supreme
13 	Court declined to review it. See id., cert. denied, 2016-NMCERT-_ (No. S-l-SC-
14 35851, May 11, 2016). We are not aware of any authority that undermines the
15 	reasoning of Carmona, which we continue to believe is sound.
16 	{16} 	To the extent the State supports its assertion with claims of inconsistency
17 between Carmona and other cases interpreting the Confrontation Clause, we are not
18 persuaded that such inconsistency exists and, even if we assume it did, that such
19 	inconsistency rises to the level of intolerability. The State cites cases that predate the
20 more-recent jurisprudence Carmona relied on and cases with (acts distinguishable
7

1 from Carmona's. We decline to overrule binding precedent based on such authority.
2 More to the point, however, the State has acknowledged that Carmona squarely
3 controls, and, in so doing, confirms that our law is clear on the Confrontation Clause
4 issue in this appeal. The State has not persuaded us that Carmona is unworkable. We
5 therefore uphold Carmona, which we use to guide our analysis of Defendant's
6 Confrontation Clause ~rgument.
7 II. 	Defendant's Confr~ntation Right Was Violated
8 {17} 	We tum next to Defendant's contention that his confrontation right was
9 violated, which we review de novo. State v. Massengill, 2003-NMCA-024, 15, 133
10 N.M. 263, 62 P.3d 354.
11 	{18} 	The Confrontation Clause states that "[i]n all criminal prosecutions, the
12 accused shall enjoy the right ... to be confronted with the witnesses against him[.]"
13 	U.S. Const. amend. VI. The right is triggered only when such a witness's stateinent
14 constitutes testimonial hearsay. 	See 	Carmona, 	2016-NMCA-050, 	115, 	(citing
15 	Crawf?rd v. 	Washington, 541 U.S. 36, 54 (2004) (recognizing that the Clause is
16 limited to witnesses who bear out-of-court, "testimonial" statements)). A statement
17 is testimonial "if the declarant made [it] primarily intending to establish some fact
18 with the understanding that the statement may be used in a criminal prosecution."
19 State 	v. 	Navarette, 	2013-NMSC-003, 	~ 8, 	294 	P.3d 	435. 	Moreover, 	"the
8

1 Confrontation Clause is violated only if the testimonial statement is offered to prove
2 the truth of the matters asserted." Id. 112. Lastly,
3
4
5
6
7
an out-of-court statement that.is disclosed to the fact-finder as the basis
for an expert's opinion is offered for the truth of the matter asserted.
Therefore, the declarant must testify at trial and be subject to cross-
examination, or alternatively must be unavailable, and the defendant
must have had a prior opportunity to cross-examine the declarant.
8 Id.113.
9 {19} 	Interpreting these principles and others, we concluded in Carmona that "the
10 Confrontation Clause prohibits the admission of DNA evidence collected by an
11 	unavailable SANE· and any expert testimony based thereon when the primary
12 purpose animating the SANE' s collection of such evidence is to assist in the
13 	prosecution of an individual identified at the time of the collection." 2016-NMCA-
14 050, 1 13. We therefore affirmed the district court's suppression of the DNA
15 	evidence.
16 	{20} 	Carmona controls the outcome of this case, as the State concedes. At trial the
17 	State sought to prove that Officer Stuart collected the sample of Defendant's DNA;
18 the collection was for the purpose of establishing a fact for use in the criminal
· 19 prosecution against Defendant. Thus, Officer Stuart was a witness against the
20 accused, and the statement he would have made at trial-that he took a DNA sample
21 	from Defendant and sent it to the crime lab-was testimonial. Officer Stuart's
22 statement would have been offered to prove the truth of a matter asserted: that the
9

I
1 swab he used to collect Defendant's DNA was the same swab the DNA analyst
2 received from the APD Criminalistics Unit and relied o~ as the basis for her opinion.
3 Officer Stuart, the declarant of a testimonial statement, did not testify at Defendant's
4 trial. His absence made the DNA analyst's statement-that Defendant was the
5 source of the DNA sample collected by Officer Stuart-hearsay. Because Defendant
6 had no opportunity to cross-examine a witness whose statement against him was
7 testimonial, Defendant's confrontation right was violated. See Navarette, 2013-
8 NMSC-003, 17 ("[A]n oqt-of-court statement that is both testimonial and offered to
, 9 prove the truth of the matter asserted may not be admitted unless the declarant is
10 unavailable 	and the 	defendant had a prior opportunity to 	cross-examine 	the
11 	declarant."); see also Carmona, 2016-NMCA-050, 142. 	.
12 	{21} 	The facts in this case closely track those in Carmona. The primary difference
13 	is that here, it was the officer who collected the DNA sample fro~ the accused-not
14 the 	SANE 	who 	collected DNA samples· from 	the 	alleged 	victim-who 	was
15 	unavailable at trial. We do not recognize in that distinction anything that would call
16 for a different interpretation of the applicable law. In both cases, the State planned
17 to or did call a DNA analyst to testify that one of the matching samples came from
18 	a particular source, but the witness who collected the sample from the source was
19 unavailable to testify. Like the accused in Carmona, Defendant had a constitutional
10

1 right to confront the witness collecting the sample. See Carmona, 2016-NMCA-050,
2, 42.
3 	{22} 	Because the 	DNA 	evidence 	was 	admitted 	in violation. of Defendant's
4 confrontation right, we next consider whether admission of this evidence was
5 harmless.
6 III. 	Admission of the DNA Evidence Was Not Harmless
7 {23} 	A violation of the Confrontation Clause, by itself, is not sufficient to require
8 a new trial. State v. Schwartz, 2014-NMCA-066,, 15, 327 P.3d. 1108. A new trial
9 is required only if the improperly admitted evidence harmed the defendant. State v.
10 	Tollardo, 2012-NMSC-008, , 25, 275 P.3d 110. "The [s]tate bears the burden of
11 	demonstrating that the error was harmless." Schwartz, 2014-NMCA-066,, 15. A
12 constitutional error is harmless only "when there is no reasonable possibility it
13 	affected the verdict." Tollardo, 2012-NMSC-008,, 36 (emphasis, internal quotation
14 marks, and citation omitted).
15 	{24} 	In order to determine whether admission of the DNA evidence was harmless
16 error, we must review "the error itself, including the source of the error and the
17 emphasis placed on the error at trial." Schwartz, 2014-NMCA-066,, 16. We also
18 must look at other evidence of guilt, not to determine whether there was sufficient
19 evidence to convict the defendant, "but to evaluate what role the. error played at
20 trial." Id. (internal quotation marks and citation omitted). We may also consider "the
11

1 importance of the erroneously admitted evidence in the prosecution's case, as· well
2 as whether the error was cumulative or instead introduced new facts." Id.
3 	{25} 	Although the State does not argue that the error was harmless, we briefly
4 review the evidence introduced to determine whether there was "no reasonable
5 possibility" that the erroneous introduction of the DNA evidence affected the
6 verdict. Tollardo, 2012-NMSC-008, 136 (emphasis, internal quotation marks and
7 citation omitted). At trial, D.H. testified about what happened, including that when
8 she woke up, Defendant's mouth was on her breast and he was caressing her breasts
9 with his hands. D.H.' s credibility was the central issue at trial, and the DNA evidence
10 corroborated her testimony. 	Although the 	State called other witnesses whose
11 	testimony was consistent with or reinforced D.H.'s version of events, none directly
12 witnessed the alleged sexual contact, and therefore the DNA .evidence was an
13 	important piece of objective, scientific evidence that collaborated D.H.'~ claim that
14 Defendant had improperly touched her.
15 	{26} 	The State'·s heavy reliance on the DNA evidence and its multiple references
16 to it in opening and closing arguments further confirm how important the DNA
17 evidence was to proving its case. See State v. Leyba, 2012-NMSC-037, 130, 289
18 P.3d 1215 (noting that the state's reliance on improperly admitted diary, including
19 the repetitive manner in which the state referred to the diary during closing
20 argument, strongly suggest how useful such evidence was). The State told the jury
12

1 m 	its 	openmg statement that it would hear DNA evidence 	of a match "for
2 [D]efendant's saliva" from swabs of D.H.'s nipples. The State's final witness, the
3 DNA analyst, testified at length about the DNA testing _she performed. In its closing
4 argument, the State mentioned the DNA evidence numerous times, telling the jury
5 that the evidence proved that Defendant touched D.H. 's breast, and the State referred
6 again to the "scientific evidence" when it acknowledged that D.H. had previously
7 made false sexual molestation claims. In its rebuttal, the State characterized the DNA
8 evidence as "rare scientific . . . evidence . . . important scientific evidence," and
9 closed its argument by stating that D.H. "isn't crying wolf here ... because of the
10 [DNA] evidence left behind" by Defendant.
11 	{27} 	The erroneously admitted DNA evidence played a key role in the State's case,
12 becaus~ 	it tied Defendant to the very acts D.H. 	described and bolstered her
13 	credibility. Because there is no reasonable possibility that this evidence did not
14 contribute 	to 	Defendant's 	conviction, 	its 	introduction 	was 	not harmless. 	See
· 15 	Schwartz, 2014-NMCA-066,, 27 (examining the central role of DNA evidence to
16 the state's case to conclude that violation of the defendant's confrontation right was
17 not harmless). Under the circumstances, we conclude that admission of the DNA
18 	evidence was not harmless error.
19 CONCLUSION
20 	{28} 	We reverse Defendant's conviction ~nd remand for a new trial.
13

1 {29}
2
3
IT IS SO ORDERED.
4 WE CONCUR:
sY--~
6 J. MILES HANISEE, Judge
7
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~&...-~	STINA B~ 	us,Judge
14