July 21, 2020- State of New Mexico v. Oliver Tsosie, No. A-1-CA-37791

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellant,	3
v. 	No. A-1-CA-37791	4
OLIVER TSOSIE, a/k/a	5
OLIVER O. TSOSIE a/ka	6
OLIVER OLIN TSOSIE,	7
Defendant-Appellee.	8
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	9
Alisa A. Hart, District Judge	10
Hector H. Balderas, Attorney General	11
Maris Veidemanis, Assistant Attorney General	12
Santa Fe, NM	13
for Appellant	14
Bennett J. Baur, Chief Public Defender	15
Kimberly M. Chavez Cook, Assistant Appellate Defender	16
Santa Fe, NM	17
for Appellee	18
MEMORANDUM OPINION	19
B. ZAMORA, Judge.	20
{1} 	This interlocutory appeal stems from the exclusion of certain statements made	21
by an unavailable witness to a Sexual Assault Nurse Examiner (SANE). Following	22
an evidentiary hearing on cross motions filed by the State and Defendant, Oliver	23
Court of Appeals of New Mexico
Filed 7/21/2020 10:12 AM

2
Tsosie, the district court found that the statements are hearsay not subject to any	1
exception, and further, that admitting the statements would violate Defendant’s	2
rights under the Confrontation Clause of the Sixth Amendment to the United States	3
Constitution. Because we agree that the admission of the statements would violate	4
Defendant’s rights under the Confrontation Clause, we need not address whether the	5
statements are subject to a hearsay exception. We affirm.	6
BACKGROUND	7
{2} 	Defendant 	is 	charged 	with 	kidnapping, 	criminal 	sexual 	penetration,	8
aggravated burglary, aggravated battery, and bribery of a witness in connection with	9
events which allegedly occurred on or about December 18, 2017. The alleged victim,	10
Kimbro Talk, died in June 2018 and is unavailable to testify at trial. Before Talk	11
passed away, he made statements during a pretrial interview, alleging that Defendant	12
assaulted and raped him in his home, tied him up, and stole his belongings.	13
Following the alleged assault, Talk managed to free himself and contact police, who	14
transported Talk to the hospital.	15
{3} 	After Talk was released from the hospital, police escorted him to the Family	16
Advocacy Center for a SANE examination. SANE nurse Gail Starr conducted the	17
examination, which consisted of a physical inspection, forensic evidence collection,	18
and an oral patient-history interview. The subject matter of the interview was wide-	19
ranging, covering Talk’s past relationship with Defendant (his former boyfriend),	20

3
his injuries, and the events which led to Talk’s alleged rape and assault. Talk’s	1
statements as well as Starr’s personal observations were memorialized by Starr in	2
writing on standardized SANE examination forms.	3
{4} 	After Talk’s death in June 2018, the State filed a motion to admit, inter alia,	4
certain statements made by Talk during his examination and interview with Starr.	5
The State admitted that Talk’s statements to Starr were hearsay, but argued that they	6
should be admitted under Rule 11-803(4) NMRA, an exception to the hearsay rule	7
permitting into evidence statements made for the purpose of medical diagnosis and	8
treatment. The State contended as well that admitting such statements into evidence	9
would not violate Defendant’s Confrontation Clause rights, arguing that statements	10
made for the purpose of medical diagnosis and treatment are non-testimonial.	11
Simultaneously, Defendant filed a motion to exclude these same statements, arguing	12
that the evidence-gathering purpose of the SANE examination rendered any	13
statements elicited from Talk testimonial, and that the statements did not fall within	14
any hearsay exception.	15
{5} 	The district court held a hearing on October 9, 2018, and partially resolved	16
several other evidentiary issues not subject to this appeal through an order filed on	17
October 16, 2018. However, the district court concluded that it could not rule on the	18
admissibility of Talk’s statements without testimony from Starr regarding the intent	19
and purpose of the SANE examination. Accordingly, the district court held a second	20

4
hearing on October 16, 2018, to allow the State an opportunity to present testimony	1
from Starr. 	On October 30, 2018, after reviewing the pleadings and hearing	2
additional oral argument, the district court issued an order admitting those statements	3
it deemed to have a primary purpose of medical treatment and excluding the	4
remaining statements.	5
{6} 	On November 1, 2018, the State timely filed its notice of appeal, invoking	6
interlocutory appellate jurisdiction, pursuant to NMSA 1978, Section 39-3-3(B)(2)	7
(1972) (allowing the state to file an interlocutory appeal from a district court order	8
suppressing evidence when it “certifies that this appeal is not taken for the purpose	9
of delay, and [that] the evidence . . . is a substantial proof of facts material in the	10
proceeding”).	11
DISCUSSION	12
{7} 	On appeal, we examine whether the district court properly excluded Talk’s	13
statements under the Confrontation Clause. At the outset, we note that the district	14
court’s ruling on the cross motions to suppress and admit the statements of Talk does	15
not clearly separate its analysis of admissibility under the hearsay rule from its	16
analysis of admissibility under the Confrontation Clause. We reiterate our Supreme	17
Court’s guidance regarding the importance of separating these analyses in cases	18
where both rules are implicated by the nature or source of the evidentiary material.	19
See State v. Mendez, 2010-NMSC-044, ¶ 26, 148 N.M. 761, 242 P.3d 328 (noting	20

5
that previous decisions have “conflated the criteria for Confrontation Clause analysis	1
and hearsay under Rule 11-803[(4)]”). As Mendez emphasized, “[t]he hearsay rule	2
and the Confrontation Clause are not co-extensive and must remain distinct.”	3
Mendez, 2010-NMSC-044, ¶ 28. This is because the constitutional concerns	4
implicated by the Confrontation Clause present a “threshold” issue, which is	5
properly addressed separate from the hearsay analysis. State v. Attaway, 1994-	6
NMSC-011, ¶ 8, 117 N.M. 141, 870 P.2d 103; State v. Soliz, 2009-NMCA-079, ¶ 8,	7
146 N.M. 616, 213 P.3d 520 (stating “when the declarant is unavailable, out-of-court	8
statements that are testimonial are inadmissible even if they meet an exception to the	9
hearsay rules”).	10
The Confrontation Clause	11
{8} 	We review the district court’s determinations regarding the admissibility of	12
statements under the Confrontation Clause de novo. See State v. Zamarripa, 2009-	13
NMSC-001, 	¶ 	22, 	145 	N.M. 	402, 	199 	P.3d 	846. 	The 	Sixth 	Amendment’s	14
Confrontation Clause confers upon the accused, “[i]n all criminal prosecutions, . . .	15
the right . . . to be confronted with the witnesses against him.” U.S. Const. amend.	16
VI. The United States Supreme Court has interpreted the Confrontation Clause as	17
barring out-of-court statements by witnesses that are “testimonial” unless those	18
witnesses are unavailable and the defendant had a prior opportunity to cross-examine	19
the witness. 	Crawford v. Washington, 541 U.S. 36, 59 (2004). In 	Davis v.	20

6
Washington, the United States Supreme Court announced the primary purpose test,	1
holding that statements are “testimonial when the circumstances objectively indicate	2
that there is no . . . ongoing emergency, and that the primary purpose of the	3
interrogation is to establish or prove past events potentially relevant to later criminal	4
prosecution.” 547 U.S. 813, 822 (2006); accord State v. Navarette, 2013-NMSC-	5
003, ¶ 7, 294 P.3d 435.	6
{9} 	In applying the primary purpose test, the district court relied principally on	7
State v. Romero for the proposition that “the level of formality of the interrogation	8
is a key factor in determining whether statements are ‘testimonial,’ ” 2007-NMSC-	9
013, ¶ 21, 141 N.M. 403, 156 P.3d 694, and State v. Largo for the proposition that	10
“[t]he actions and statements of both the interrogator and the declarant may	11
illuminate the primary purpose of the interrogation.” 2012-NMSC-015, ¶ 16, 278	12
P.3d 532. Pursuant to these statements of law, the district court excluded certain	13
statements made by Talk during the SANE examination determining the statements	14
“were not made for the primary purpose of seeking medical treatment and are	15
testimonial hearsay and a violation of Defendant’s right to confrontation.” For	16
instance, the district court excluded statements of Talk describing the method and	17
manner of strangulation reasoning that “[a]lthough, the SANE nurse has specialized	18
training in injuries caused by strangulation, objectively, the primary purpose of these	19
structured questions are not for medical treatment and focus on past events, not	20

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current symptoms.” The district court also excluded statements regarding consent	1
for services, information elicited from Talk during the sexual assault intake, and	2
Talk’s narrative and statements about the alleged sexual assault.	3
{10} 	The State urges us to overturn the district court’s ruling, arguing that the	4
district court misapplied the Romero holding that “[t]he level of formality of the	5
interrogation is a key factor in determining whether statements are ‘testimonial,’ ”	6
because 	this 	quote 	comes 	from 	a 	portion 	of 	the 	opinion 	discussing 	police	7
interrogations, not a SANE examination. Thus, the State contends the district court	8
failed to distinguish the SANE examination in this case from interrogations	9
conducted by law enforcement officers. The State also argues that the facts in this	10
case are distinguishable from the facts of Romero and a similar case, State v. Ortega,	11
2008-NMCA-001, 143 N.M. 261, 175 P.3d 929, overruled on other grounds by	12
Mendez, 	2010-NMSC-044. 	In 	Romero 	and 	Ortega, 	the 	SANE 	examinations	13
occurred long after the date of the alleged assault, indicating that their primary	14
purpose was not medical treatment, but evidence gathering. See Romero, 2007-	15
NMSC-013, ¶ 17; Ortega, 2008-NMCA-001, ¶¶ 12, 19. In contrast, Talk’s SANE	16
examination occurred the same night as the alleged assault, and hence, the State	17
contends that Talk’s statements are more likely to have a primary purpose of medical	18
treatment rather than prosecution of a crime. Finally, the State argues that the district	19
court’s decision is incongruous with recent decisions from other jurisdictions	20

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wherein courts admitted statements to medical personnel made under similar	1
circumstances.	2
{11} 	In contrast, Defendant urges us to follow Romero and Ortega, which stand for	3
the proposition that even statements with a medical purpose can be testimonial if	4
they accuse a defendant of specific criminal acts. Defendant further contends that	5
the Confrontation Clause’s primary purpose test means what it says; it requires a	6
primary purpose of medical treatment—not just pertinence thereto—in order to be	7
admissible, 	and 	urges 	us 	to 	affirm 	the 	district 	court 	findings 	applying 	this	8
framework.	9
{12} 	The parties’ disagreement regarding application of the law to the facts of this	10
case is fueled by a complicated history of Confrontation Clause jurisprudence.	11
Previous courts have widely varied their approach and focus based on the nature and	12
facts of the case. Compare Romero, 2007-NMSC-013, ¶ 12 (focusing primarily on	13
the intent of the declarant and the content of the declarant’s statements), with State	14
v. Tafoya, 2010-NMCA-010, ¶ 35, 147 N.M. 602, 227 P.3d 92 (focusing primarily	15
on the circumstances and purpose of the SANE examination at issue, and the role of	16
the nurse who conducted it), and State v. Carmona, 2016-NMCA-050, ¶ 38, 371	17
P.3d 	1056 (examining 	both 	individual 	statements 	and 	their 	surrounding	18
circumstances as well as the knowledge of the witness and SANE nurse to determine	19
admissibility).	20

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{13} 	Our Supreme Court’s 2013 Navarette decision aids in clarifying the proper	1
framework of analysis by identifying seven principles “essential” to an analysis	2
under 	the 	Confrontation 	Clause: 	(1) 	“an 	out-of-court 	statement 	that 	is 	both	3
testimonial and offered to prove the truth of the matter asserted may not be admitted	4
unless the declarant is unavailable and the defendant had a prior opportunity to cross-	5
examine the declarant”; (2) “a statement can only be testimonial if the declarant	6
made the statement primarily intending to establish some fact with the understanding	7
that the statement may be used in a criminal prosecution”; (3) “when determining	8
whether an out-of-court statement is testimonial, there is no meaningful distinction	9
between factual observations and conclusions requiring skill and judgment”; (4)	10
“even if a statement . . . does not target a specific individual, the statement may still	11
be testimonial”; (5) “the fact that an out-of-court statement . . . is not inherently	12
inculpatory does not make it non-testimonial”; (6) “the Confrontation Clause is	13
violated only if the testimonial statement is offered to prove the truth of the matters	14
asserted”; and (7) “an out-of-court statement that is disclosed to the fact-finder as	15
the basis for an expert's opinion is offered for the truth of the matter asserted.”	16
Navarette, 2013-NMSC-003, ¶¶ 7-13. Our inquiry is further aided by the United	17
States Supreme Court’s decision in Ohio v. Clark, wherein the Court examined a	18
question it “repeatedly reserved: whether statements to persons other than law	19
enforcement officers are subject to the Confrontation Clause.” 576 U.S. 237, 246	20

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(2015). Reviewing a case in which a student made statements to his teacher, the	1
Court clarified that although statements to individuals other than law enforcement	2
officers 	are not 	“categorically outside the Sixth 	Amendment,” statements 	to	3
individuals “not principally charged with uncovering and prosecuting criminal	4
behavior are significantly less likely to be testimonial than statements given to law	5
enforcement officers.” Id. at 249. From Clark then, we can derive an additional	6
principle guiding our Confrontation Clause analysis. More generally, our Supreme	7
Court has noted that a Confrontation Clause analysis should focus “largely on	8
surrounding 	circumstances 	to 	separate 	testimonial 	from 	non-testimonial	9
statements.” Mendez, 2010-NMSC-044, ¶ 29. “Both this Court and the United States	10
Supreme Court have held that in lieu of suppressing in entirety a document	11
containing such testimonial statements, the district court instead should review the	12
evidence at issue in a line-by-line manner and redact those portions that are	13
testimonial in nature.” State v. Jim, 2014-NMCA-089, ¶ 17, 332 P.3d 870.	14
{14} 	From these principles, we conclude that we should conduct our analysis of	15
Confrontation 	Clause 	issues 	under 	a totality of 	the 	circumstances 	approach:	16
interpreting the testimonial nature of each statement individually, guided by the	17
circumstances in which it was made, and evaluating both the intent of the declarant	18
and the interviewer.	19

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{15} 	Applying the principles articulated above to the statements at issue in this	1
case, we hold that there was no error in the district court’s ruling. We begin with	2
analyzing the identity of the interviewer—Starr’s identity as a SANE—as it has	3
particular relevance in this case. The State argues that Starr did not “interrogate”	4
Talk in the same way a police officer might; ergo the primary purpose of her	5
examination could not have been “to establish or prove past events potentially	6
relevant to later criminal prosecution.” Davis, 547 U.S. at 822. We disagree. The	7
fact that Starr is a SANE as opposed to a law enforcement agent does not necessarily	8
render statements made to her non-testimonial. While Starr is “not principally	9
charged with uncovering and prosecuting criminal behavior,” Clark, 576 U.S. at 249,	10
Starr testified that she was “trained in treating victims of sexual assault, as well as	11
in collecting and preserving evidence of sexual abuse for forensic use.” In addition,	12
we have previously noted that “SANE nurses have a dual role: the provision of	13
medical care and the collection and preservation of evidence.” Mendez, 2010-	14
NMSC-044, ¶ 42 (emphasis omitted).	15
{16} 	Second, because a statement can only be testimonial if the declarant made the	16
statement with the understanding that the statement may be used in a criminal	17
prosecution, we review the evidence adduced below to ascertain Talk’s level of	18
understanding of the purpose of his statements to Starr. The examination of Talk	19
took place at a clinic located in the same building as law enforcement, but in a	20

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separate area. Talk was also brought to the clinic by law enforcement. At Starr’s	1
request, Talk provided a narrative recounting the assault and identifying his	2
assailant. Finally, Talk was asked to provide genital and anal swabs for forensic	3
purposes and consented to “release all records and evidence pertaining to this case	4
to the pertinent law enforcement agency.” Because Talk was taken to the clinic by	5
law enforcement on the same night as the assault, was asked in detail about the	6
assault during the examination, was asked to provide forensic genital and anal swabs,	7
and consented to the release of information to law enforcement, we conclude that	8
Talk understood that at least some of his statements would be used to prosecute	9
Defendant. To the extent statements made by Talk were testimonial they are properly	10
excluded, and cannot serve as the basis for Starr’s opinion at trial.	11
{17} 	Aggregating the factors applicable to this case and applying them to each	12
individual statement, we affirm the district court’s ruling under the Confrontation	13
Clause. Specifically, Talk’s narrative account of the encounter is testimonial in that	14
it identifies Defendant and accuses him of specific acts. Talk’s description of the	15
method and manner of strangulation are testimonial for the same reasons. And, the	16
remaining statements the district court excluded are testimonial because they focus	17
on past events rather than current symptoms.	18
{18} 	Having determined that the district court properly excluded the statements	19
because admission of the statements would violate Defendant’s Confrontation	20

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Clause rights, we need not address whether these same statements are admissible	1
under an exception to the hearsay rule. See State v. Martinez, 1982-NMCA-137,	2
¶ 16, 99 N.M. 48, 653 P.2d 879 (holding that “[t]he fact that evidence may have	3
qualified for admission under an exception to the hearsay rule does not necessarily	4
mean that a defendant's constitutional right of confrontation was not violated.”).1
5
CONCLUSION	6
{19} 	For the foregoing reasons, we affirm.	7
8
1 The State also argues that the district court disregarded the uncontradicted
testimony of Starr. The State relies on State v. Jason L., 2000-NMSC-018, ¶ 11, 129
N.M. 119, 2 P.3d 856, for the proposition that when a district court makes no
findings of fact in a decision on a motion to suppress, we presume from the district
court’s failure to indicate its rejection of uncontradicted evidence that the district
court “believed all uncontradicted evidence.” We are unpersuaded. Our role is not
to second guess the district court’s decisions regarding the weight and reliability of
evidence. See State v. Martinez, 2018-NMSC-007, ¶ 14, 410 P.3d 186 (“[T]he
district court must evaluate the credibility of witnesses and determine the weight to
which the evidence is entitled.”). Acting in its capacity as fact-finder, “[t]he district
court may exercise discretion to credit [or discredit] portions of a witness’[s]
testimony[.]” Id. (internal quotation marks and citation omitted). This discretion
applies to expert testimony. See State v. Gonzales, 2001-NMCA-025, ¶ 40, 130
N.M. 341, 24 P.3d 776 (“We recognize that the fact[-]finder is entitled to disregard
evidence presented by either party, and to disregard the testimony of experts[.]”
(citation omitted)), overruled on other grounds by State v. Rudy B., 2009-NMCA-
104, 147 N.M. 45, 216 P.3d 810. In cases such as this where a district court does not
explicitly make any findings regarding the credibility of a witness, “[a]ll reasonable
inferences in support of the district court’s decision will be indulged in, and all
inferences or evidence to the contrary will be disregarded.” Jason L., 2000-NMSC-
018, ¶ 10 (internal quotation marks and citation omitted).

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{20} 	IT IS SO ORDERED.	1
______________________________	2
BRIANA H. ZAMORA, Judge	3
WE CONCUR:	4
________________________________	5
J. MILES HANISEE, Chief Judge	6
________________________________	7
JACQUELINE R. MEDINA, Judge	8