State v. Antonio M.

Office of the Director New Mexico
13:14:39 2023.10.11 Compilation
'00'06- Commission

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2023-NMSC-022

Filing Date: July 27, 2023

No. S-1-SC-39343

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

ANTONIO M.,

Child-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Grace B. Duran, District Judge

Hector H. Balderas, Attorney General
Meryl E. Francolini, Assistant Attorney General
Santa Fe, NM

for Petitioner

Harrison, Hart & Davis, LLC
Nicholas T. Hart
Albuquerque, NM

for Respondent

OPINION

BACON, Chief Justice.

{1} A jury found that Child-Respondent Antonio M. (Child) committed felony murder,
attempted armed robbery, conspiracy to commit armed robbery, child abuse, and
aggravated assault with a deadly weapon. On appeal, Child challenged the admission
of three in-court identifications under federal and state due process. State v. Antonio M.,
2022-NMCA-041, ¶ 36, 516 P.3d 193.

{2} The Court of Appeals reversed for plain error, finding that the in-court
identifications were impermissibly suggestive and thereby violated Child’s due process
right to a fair trial under the Fourteenth Amendment of the United States Constitution.
Antonio M., 2022-NMCA-041, ¶¶ 44, 46. The Court of Appeals remanded for a new
adjudicatory hearing and did not reach the state constitutional issue. Id. ¶¶ 46, 49.

{3} On our grant of certiorari, Petitioner State of New Mexico makes three primary
arguments for reversing the Court of Appeals. First, the State contends that identity was
not at issue at the adjudicatory hearing, and thus any alleged suggestiveness in the
relevant prosecutorial identification procedures did not implicate Child’s due process
rights. Second, the State challenges the Court of Appeals’ application of the federal due
process standard articulated in Manson v. Brathwaite, 432 U.S. 98 (1977) and State v.
Ramirez, 2018-NMSC-003, 409 P.3d 902, to in-court procedures by prosecutors. Third,
the State contends that, in the event this Court finds that Manson does apply, the Court
of Appeals’ analysis under Manson and Ramirez was “substantively flawed” and that no
plain error occurred under a proper analysis. In response, Child seeks affirmance of the
Court of Appeals.

{4} We determine that identity was not at issue regarding the testimony of the three
relevant witnesses and thus that Child’s due process rights were not violated by the
relevant in-court identifications. Accordingly, we reverse the Court of Appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

{5} The State charged Child as a participant in the fatal shooting of Fabian Lopez
(Victim) at Frenger Park in Las Cruces. Uncontested evidence at Child’s adjudicatory
hearing established that M.M. and two other participants killed Victim in his car in the
course of a drug deal. During opening statements and closing arguments, as discussed
further below, defense counsel’s theory of the case was that the State could not present
sufficient evidence of Child’s participation in the crime and that the robbery and resulting
homicide were unplanned and unintended results of a simple drug purchase. Defense
counsel did not challenge Child’s presence in the car that transported M.M. to and from
the park.

{6} Evidence presented at the adjudicatory hearing included testimony by two
eyewitnesses and three collateral witnesses. During the relevant events, Victim’s
girlfriend (Girlfriend) sat in the back seat of Victim’s car with their infant son. Girlfriend,
one of the eyewitnesses, testified that M.M. was alone initially, entered the car and
transacted for drugs with Victim, and then stepped out of the car on the passenger’s
side, pointed a gun at Victim, and demanded that Victim “give me what you got.”
Girlfriend testified further that “[t]wo guys” with guns walked up on the driver’s side at
the same time, that one of the two participants had dreadlocks, and that multiple shots
were fired. At a police-arranged lineup of six suspects with dreadlocks, Girlfriend
positively identified someone other than Child as a participant.

{7} The other eyewitness to the crime, M.A., was parked in her truck at Frenger Park
when she saw “[s]ome boys jumping the fence,” one of whom she recalled wearing “a
red hoodie.” M.A. testified that “the boys walk[ed] away for a while,” then Victim’s car
pulled up behind her, and then “the [two] boys reappeared,” including the one wearing
the red hoodie. M.A. testified that she drove away when she saw one of the participants
with a gun, and she heard a gunshot as she drove. M.A. testified that she recalled
nothing distinctive about the two boys, including that she could not tell the hairstyle of
the individual wearing the red hoodie.

{8} The State presented three other witnesses: E.M., Y.C., and D.G. These
witnesses—referred to herein as collateral witnesses, as they did not witness the
criminal events at the park—testified to Child’s statements, conduct, and demeanor
before and after the criminal events.

{9} E.M. and Y.C. testified to transporting Child, M.M., and A.C. in E.M.’s car to
Frenger Park on the evening in question for the purpose of “a drug trade.” E.M. and
Y.C. testified that they dropped off the trio at the park, parked and waited a couple of
blocks away, and then transported the trio to D.G.’s residence. E.M. and Y.C. further
testified that, while at D.G.’s residence, Child asked them for a ride to another location
at a mobile home trailer park, which they provided.

{10} E.M. and Y.C. also testified to being familiar with Child by the nickname “Santi
Loc.” E.M. testified that he recalled Child having dreadlocks with blonde tips and that he
had not met Child prior to the date in question. Y.C. testified that she remembered that
Child’s hairstyle was “long,” in “either dreads or braids.” Y.C. testified that she and Child
“weren’t friends [but] I knew him from other friends.”

{11} D.G. testified that she didn’t “really personally know [Child]. I just met him from a
friend . . . about a year [ago] maybe.” D.G. recounted being awakened late on the night
in question by E.M., Y.C., M.M., A.C., and Child. D.G. testified that she was in the same
room with Child as “[h]e was begging for [E.M.] to give him a ride” home. D.G. also
recounted that Child “only stayed for maybe . . . 20 minutes after they came because
[Y.C.] and [E.M.] had taken him home.”

{12} Central to the issue before the Court, the prosecutor asked E.M., Y.C., and D.G.
on direct examination to identify Child. Pursuant to the Judiciary’s COVID-related public
health emergency protocols, everyone in the courtroom during the adjudicatory hearing
was required to wear a protective face covering throughout the proceeding, “except that
a face covering may be removed for a very brief moment to allow for the identification of
a party or witness.” NMSC Order No. 21-8500-003, at 5, 14 (Feb. 12, 2021),
https://www.nmcourts.gov/wp-content/uploads/2021/02/Order-No.-21-8500-003-
Amending-PHE-Protocol-No.1-2-12-21-Combined.pdf (last visited July 9, 2023).

{13} With E.M., the prosecutor conducted the following identification:

Prosecutor: Your Honor, I would like to ask [E.M.] if he could identify
[Child]. But I would like to ask if [Child] could take off his mask for the
purpose of identification so [E.M.] can see his face.

Court: All right. Just briefly.

Prosecutor: Please look here and see.
(Witness looks at [Child].)

Prosecutor: Okay. Thank you. Who is the young man that you looked at
seated over here?

E.M.: [Child].

Prosecutor: Okay. Thank you.

With Y.C., the prosecutor conducted the following identification:

Prosecutor: Your Honor, I would like to ask [Y.C.] if she could identify
[Child]. Could I please ask [Child] to remove his mask just long enough for
her to see if she identifies him or not?

Court: Yes.

Prosecutor: So please look at this young man. Can you tell is this [Child]
or not?

Y.C.: Yes, I believe so.

Prosecutor: Okay. Thank you.

With D.G., the prosecutor conducted the following identification:

Prosecutor: Your Honor, I would like to ask if [D.G.] could identify [Child].
I would like to ask if [Child] could briefly remove his mask to see if she can
identify him.

Court: Okay. Please.

Prosecutor: Please look at this young man here and tell us if this is
[Child].

D.G.: Yes, it is.

Prosecutor: Okay. Thank you.

The record reflects and Child concedes that Child did not object to the prosecutor’s
identification procedures regarding the collateral witnesses’ identifications.

{14} On cross-examination, defense counsel did not challenge the collateral
witnesses’ accounts of Child’s statements, conduct, or demeanor. Rather, defense
counsel confirmed each collateral witness’s account of Child’s state of mind after the
robbery as scared or anxious to go home.
{15} As cited herein, defense counsel’s consistent theory of the case in opening
statements and closing arguments challenged whether Child was one of the participants
in the robbery-homicide and whether Child possessed any criminal intent beyond the
drug transaction. During opening statements, defense counsel stated that “there’s not
going to be sufficient evidence to prove [Child’s] role or his criminal liability for the
horrible things that happened including [Victim’s] death.” During closing arguments,
defense counsel asserted that the State had not proven that Child was “one of those
two boys” who participated with M.M. in the robbery-homicide and that Child “had no
[criminal] intent” beyond “a drug transaction.” Defense counsel also directly cited the
accounts of E.M., Y.C., and D.G. regarding Child’s mental state, effectively
acknowledging the accuracy of the witnesses’ testimony.

{16} Consistent with the jury verdict, the district court adjudged Child delinquent as
having committed first-degree felony murder contrary to NMSA 1978, Section 30-2-
1(A)(2) (1994), attempted armed robbery contrary to NMSA 1978, Section 30-16-2
(1973) (a lesser included offense of felony murder), conspiracy to commit armed
robbery contrary to NMSA 1978, Section 30-28-2 (1979), abuse of a child contrary to
NMSA 1978, Section 30-6-1(D) (2009), and aggravated assault with a deadly weapon
contrary to NMSA 1978, Section 30-3-2(A) (1963).

II. COURT OF APPEALS

{17} The Court of Appeals applied plain error review where no objection had been
raised at the adjudicatory hearing to the in-court identifications. Antonio M., 2022-
NMCA-041, ¶ 37. The Court properly recognized that “[p]lain error review applies to
errors that affect substantial rights of the accused and only applies to evidentiary
matters” and that a court finding plain error “must be convinced that admission of the
[challenged evidence] constituted an injustice that creates grave doubts concerning the
validity of the verdict.” Id. (internal quotation marks and citations omitted). The Court
also recognized that under plain error review a court “‘must examine the alleged errors
in the context of the testimony as a whole.’” Id. (quoting State v. Montoya, 2015-NMSC-
010, ¶ 46, 345 P.3d 1056).

{18} The Court of Appeals first analyzed the challenged in-court identifications under
the Fourteenth Amendment due process standard set forth in Manson, as applied by
this Court in Ramirez, 2018-NMSC-003, ¶¶ 33-36. Antonio M., 2022-NMCA-041, ¶¶ 42-
46. The Court of Appeals recognized that under Manson “appellate courts [must]
analyze ‘whether the [identification] procedure used was so impermissibly suggestive as
to give rise to a very substantial likelihood of irreparable misidentification and whether,
under the totality of the circumstances, the identification was still reliable.’” Antonio M.,
2022-NMCA-041, ¶ 43 (quoting State v. Martinez, 2021-NMSC-002, ¶ 28, 478 P.3d
880).

{19} The Court of Appeals found that the in-court identifications by the collateral
witnesses violated Manson as unreliable where “procured in-court under unnecessarily
suggestive circumstances.” Antonio M., 2022-NMCA-041, ¶ 44. The Court pointed to
those circumstances in three aspects of the prosecutor’s identification procedures:
us[ing] Child’s name while asking each witness to identify him[;] . . .
ask[ing] two of the witnesses to “please look at this young man,” instead of
asking the witnesses if they saw Child in the courtroom[; and] . . . singl[ing]
Child out by asking him to remove his mask, which is comparable to
asking Child to identify himself by raising his hand or turning around.

Id. ¶ 45. Based on these “unnecessarily suggestive procedures” by the prosecutor, the
Court concluded that “the district court erred in admitting the three identifications.” Id.

{20} Importantly, in determining that the district court’s error constituted plain error,
the Court of Appeals determined that “[i]dentity was a central issue in this case.” Id. ¶
46. The Court noted that “E.M. and Y.C. [we]re the only witnesses to put Child at the
park that night” and that the collateral witnesses “only had brief interactions [with] him
prior to the adjudicatory hearing.” Id. Considering the witnesses’ testimony as a whole,
the Court concluded plain error occurred where “the State’s actions tending to suggest
the identification of Child for these witnesses in court ‘constituted an injustice’ that
creates doubts about the validity of the verdict and violated his right to due process.” Id.
(citation omitted).

{21} Based on this conclusion, the Court of Appeals reversed the district court and
remanded for a new adjudicatory hearing, thereby precluding analysis of Child’s state
constitutional claim that the standard in Martinez should be extended to in-court
identification procedures. Id. ¶¶ 46-49; see Martinez, 2021-NMSC-002, ¶ 72 (“departing
from the Manson [reliability standard] and adopting in its place a per se rule of
exclusion” for “unnecessarily suggestive, police-arranged, pretrial identifications”).

{22} The State timely appealed, and we granted certiorari.

III. DISCUSSION

{23} We first address the State’s argument that the collateral witnesses’ in-court
identifications of Child, even if elicited by suggestive procedures, did not violate Child’s
due process rights.

{24} “This appeal implicates important constitutional rights, including . . . the
Fourteenth Amendment right to due process of law, including the right to a fair trial, and
therefore our review is de novo.” State v. Belanger, 2009-NMSC-025, ¶ 8, 146 N.M.
357, 210 P.3d 783.

{25} The State argues that “a due process violation cannot possibly result from
introduction of testimony that aligned with the defense’s theory of the case,” arguing
further that Child’s “identity as someone E.M., Y.C., and D.G. spent time with on August
4, 2020, was never contested or at issue here.” The State distinguishes between Child’s
identity being “contested with respect to whether he actually committed the robbery
within the park” and Child’s identity within the uncontested scope of the collateral
witnesses’ testimonies. Because “none of the three [collateral] witnesses at issue
testified to seeing [Child] commit the crime or witnessing the crime at all,” the State
asserts that therefore Child “understandably raised no objection to the in-court
identifications when they occurred, did not cross-examine any of the witnesses about
the identifications, and did not attack the identification testimony in argument.”

{26} The State cites State v. Collymore, 223 A.3d 1, 33-34 (Conn. 2020), for the
proposition that a “defendant’s identity can be at issue during trial in some respects or
as to certain charges, but not at issue in other respects so as not to give rise to due
process concerns when the defendant is identified in those respects.”

{27} In Collymore, the defendant was found guilty of felony murder, attempt to commit
robbery, conspiracy to commit robbery, and criminal possession of a firearm. Id. at 33.
The defendant’s identity as the shooter was disputed at trial, including by first-time in-
court identification. Id. at 31-33. Notwithstanding that disputed issue, the Connecticut
Supreme Court determined that, where the defendant’s own testimony placed him at the
scene of the crime, “identity was not at issue as to the charges of felony murder, . . .
attempted robbery, and conspiracy to commit robbery.” Id. at 33. For those charges, the
Collymore Court reasoned that resolving the dispute as to identity was not necessary for
the defendant to be found guilty because “[i]t was sufficient for the state to establish that
the defendant participated . . . while another participant . . . possessed, used, or
threatened the use of a firearm.” Id.. The Court thus concluded that “the admission of
the identification testimony . . . did not implicate the defendant’s due process rights [as
to those charges] and, therefore, was not harmful.” Id. at 34. The defendant’s identity
was at issue, however, regarding the charge of criminal possession of a firearm, and the
Court therefore ruled that “the identification testimony . . . did implicate the defendant’s
due process rights in relation to” that charge. Id.

{28} Without citation of authority, Child attempts to distinguish Collymore, pointing to
Child not taking the stand and arguing that defense counsel’s arguments in
acknowledging testimony of the collateral witnesses at the adjudicatory hearing “cannot
be compared to an admission by a defendant.” We find this distinction unavailing, as we
have often recognized the relevance of a party’s theory of the case to what is at issue.
See, e.g., State v. Candelaria, 2019-NMSC-004, ¶¶ 37-39, 434 P.3d 297 (determining
from the trial record that a no-duty-to-retreat argument formed no part of the defendant’s
self-defense theory of the case and “was simply not at issue” in the jury’s finding of
unreasonableness).

{29} We approve the reasoning in Collymore that, where “identity [i]s not at issue as to
the charges,” an in-court identification does not implicate due process concerns to
constitute plain error. See 223 A.3d at 28, 32-34; see also Montoya, 2015-NMSC-010, ¶
46 (stating that under Rule 11-103(D)-(E) NMRA, “plain[ ]error . . . applies only if the
alleged error affected the substantial rights of the accused.” (internal quotation marks
and citation omitted)) We also note that our courts are well practiced in determining
whether the scope of particular testimony is material or relevant to a discrete issue.

{30} Rebutting the State’s claim that identity was not at issue, Child argues that “a
critical fact at the [adjudicatory hearing] was whether [Child] was present during the
alleged [robbery-homicide]” and that the prosecutor improperly sought “to identify Child[]
as being present at the scene of the [robbery-homicide] or with others known to have
participated in the [robbery-homicide].” Child further asserts that “there is simply no
doubt that identity, or in specific terms the identity of the two boys who carried out the
robbery while standing on the driver’s side of the car, was at issue.”

{31} However, Child’s rebuttal points only to alleged infirmities in the relevant
testimony of the two eyewitnesses and does not explain how the collateral witnesses’
testimony establishes Child’s identity as a criminal participant at the park, thereby giving
rise to due process concerns. Instead, Child specifies “the key issue at the [adjudicatory
hearing]” as “the State’s argument . . . that [Child] was one of the [two] people standing
on the driver’s side of the car who committed the robbery” and asserts that the State
“saying it doesn’t make it true” (internal quotation marks omitted). To the extent that
Child’s argument suggests that the State did not meet its burden to prove Child’s
participation or presence at the park, such would be a question of sufficiency of the
evidence rather than a due process challenge. Such a question is not before us, and so
we restrict our focus here to whether the collateral witnesses’ in-court identifications are
relevant to the scope of the contested-identity issue.

{32} The adjudicatory hearing record is clear that the collateral witnesses offered no
testimony specifying Child as a participant in the robbery-homicide. Regarding Child’s
statements, conduct, and demeanor that night, E.M. and Y.C. testified only within the
scope of traveling to and from the park, interacting at D.G.’s residence, and transporting
Child home, whereas D.G. testified only within the scope of events at her residence.

{33} The record is also clear that defense counsel’s theory of the case did not contest
Child’s identity within the scope of the collateral witnesses’ testimony. Rather, defense
counsel on cross-examination confirmed aspects of the witnesses’ accounts, and
defense counsel in opening statements and closing arguments affirmed and relied on
those accounts. For example, defense counsel argued at closing that Child lacked intent
for the robbery-homicide by stating that Child “had no ability to determine that a strong
probability of death or great bodily harm was going to occur. This was a drug
transaction. That’s what [Child], that’s what [Y.C.], that’s what [E.M.] thought they were
going to the park to do. That’s it.” To further support that Child “did not have any idea
nor any intent nor any plan to have [M.M.] shoot anyone,” defense counsel cited the
collateral witnesses’ corroborative testimony that Child’s demeanor after the robbery-
homicide was “freaked out” and “panicked,” including “begging to go home” while at
D.G.’s residence.

{34} Based on the foregoing, we conclude that the scope of the contested-identity
issue did not extend to the testimony of the collateral witnesses. In accordance with our
conclusion, the collateral witnesses’ in-court identifications did not give rise to due
process concerns, and we need not reach the question whether and, if so, how Manson
should be applied to first-time in-court identifications elicited by the State under federal
due process. 1

{35} We reverse the Court of Appeals and affirm Child’s delinquency adjudications in
the district court.

{36} IT IS SO ORDERED.

C. SHANNON BACON, Chief Justice

WE CONCUR:

MICHAEL E. VIGIL, Justice

DAVID K. THOMSON, Justice

JULIE J. VARGAS, Justice

BRIANA H. ZAMORA, Justice

1We note our agreement with the Court of Appeals that the prosecutor’s identification procedures may
have been unnecessarily suggestive, notwithstanding the requirements of NMSC Order No. 21-8500-003,
supra; see Antonio M., 2022-NMCA-041, ¶ 45, but that issue escapes plain error review under the facts
and procedural posture of this case.