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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: ________________ 3 Filing Date: January 4, 2023 4 No. A-1-CA-39175 5 STATE OF NEW MEXICO, 6 Plaintiff-Appellee, 7 v. 8 JACOB SCOTT, 9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 11 James Waylon Counts, District Court Judge
12 Raúl Torrez, Attorney General 13 Benjamin Lammons, Assistant Attorney General 14 Santa Fe, NM
15 for Appellee
16 Bennett J. Baur, Chief Public Defender 17 Charles D. Agoos, Assistant Appellate Defender 18 Santa Fe, NM
19 for Appellant 1 OPINION 2 HANISEE, Chief Judge. 3 {1} Defendant Jacob Scott appeals his convictions, following a jury trial, for two 4 counts of trafficking controlled substances, contrary to NMSA 1978, Section 30-31- 5 20(B) (2006). Defendant argues the following: (1) law enforcement officers’ 6 testimony regarding information provided by a confidential informant (CI) violated 7 the Confrontation Clause; (2) the admission of such testimony alternatively 8 constituted inadmissible hearsay amounting to prejudicial constitutional error; (3) 9 the district court erred in denying Defendant’s motion to exclude as a discovery 10 sanction evidence related to law enforcement’s coordination with the confidential 11 informant; and (4) the State violated Defendant’s right to reasonable notice by 12 changing its theory of the case on the morning trial was set to begin. For the reasons 13 that follow, we affirm. 14 DISCUSSION 15 {2} The Lincoln County Sheriff’s Office executed an arrest warrant during a 16 traffic stop for charges pending against Defendant in a matter unrelated to this 17 appeal. During that arrest, law enforcement found approximately twenty grams of 18 heroin and seven grams of methamphetamine in Defendant’s underwear. Defendant 19 subsequently was indicted by a grand jury on multiple charges, including the two
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1 counts of trafficking a controlled substance on which he was convicted.1 At trial, 2 Officers Brack Rains and Pat Montes testified to the circumstances that led to 3 Defendant’s arrest, including information regarding law enforcement’s coordination 4 with a CI. 5 {3} Defendant first argues that such testimony violated the Confrontation Clause 6 because it conveyed to the jury out-of-court statements intended to prove the truth 7 of the matter asserted—that is, that Defendant had an intent to distribute the drugs 8 found on his possession. “[W]hether out-of-court statements are admissible under 9 the Confrontation Clause is a question of law, subject to de novo review.” State v. 10 Largo, 2012-NMSC-015, ¶ 9, 278 P.3d 532. The Confrontation Clause ensures that 11 “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted 12 with the witnesses against him.” U.S. Const. amend. VI; N.M. Const. art. II, § 14. 13 Under the Confrontation Clause, “an out-of-court statement that is both testimonial 14 and offered to prove the truth of the matter asserted may not be admitted unless the 15 declarant is unavailable and the defendant had a prior opportunity to cross-examine 16 the declarant.” State v. Navarette, 2013-NMSC-003, ¶ 7, 294 P.3d 435.
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Defendant was initially charged as well with one count of racketeering, contrary to NMSA 1978, Section 30-42-4(C) (2015); one count of extortion, contrary to NMSA 1978, Section 30-16-9 (1963); and two counts of receiving or transferring a stolen motor vehicle, contrary to NMSA 1978, Section 30-16D-4(A)
(2009). The State subsequently filed a nolle prosequi as to these charges.
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1 {4} Here, Defendant asserts that the following testimony of Officer Rains 2 included testimonial statements by the CI used to establish the truth of the matter 3 asserted:
4 State: So how did you know [Defendant] was going to be 5 in the area?
6 Officer Rains: . . . [W]e arranged through a [CI] to make a 7 purchase.
8 ....
9 State: On January 24th, you were working with a [CI] and 10 what did you instruct the informant to do?
11 Officer Rains: Order narcotics from [Defendant]. Arrange for a 12 meeting.
13 State: Did [the CI] give you a general vicinity of where 14 that meeting should occur?
15 Officer Rains: He did. 16 {5} Defendant further contends that the following testimony of Officer Montes, 17 who found the narcotics during the execution of the warrant for Defendant’s arrest, 18 included impermissible testimonial statements used to prove the truth of the matter 19 asserted:
20 I took [Defendant] out of his vehicle, took him down, advised him of 21 his warrant, was advised to pat him down for narcotics because he was 22 known to have narcotics on him.
23 {6} We first consider whether these statements are testimonial. See Navarette, 24 2013-NMSC-003, ¶ 7. Testimonial statements may include “formalized testimonial
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1 materials, such as affidavits, depositions, prior testimony, or confessions,” as well 2 as “statements that were made under circumstances which would lead an objective 3 witness reasonably to believe that the statement would be available for use at a later 4 trial.” State v. Gurule, 2013-NMSC-025, ¶ 35, 303 P.3d 838 (internal quotation 5 marks and citation omitted). Our Supreme Court has explained that “a statement can 6 only be testimonial if the declarant made the statement primarily intending to 7 establish some fact with the understanding that the statement may be used in a 8 criminal prosecution.” Navarette, 2013-NMSC-003, ¶ 8. 9 {7} Here, even if we were to assume without deciding that a “reasonable person” 10 in the CI’s position—that being the position of someone working with law 11 enforcement officers to set up a controlled buy for the sale of narcotics—“would 12 objectively believe that [his or her] statement . . . would be used in a later criminal 13 prosecution,” Gurule, 2013-NMSC-025, ¶ 38, we cannot conclude that the 14 challenged testimony at issue included testimonial statements made by the CI. 15 Indeed, there is no actual statement to analyze for its testimonial nature here, given 16 that the testimony in question wholly lacks any words allegedly uttered by the CI. In 17 order to demonstrate a Confrontation Clause violation, the State must elicit 18 testimony conveying a specific statement made by an out-of-court declarant who is 19 unavailable for cross-examination. Navarette, 2013-NMSC-003, ¶ 7. Defendant has
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1 failed to identify the occurrence of such testimony, and our own thorough review of 2 the record likewise reveals none. 3 {8} Stated differently, the testimony Defendant contends triggered his right to 4 confront by cross-examination the CI altogether lacks words spoken by the CI. To 5 the extent any of the officers’ testimonies can even be construed as attributable to 6 the CI, that aspect of it does not assert who was the seller or who the buyer was at 7 any completed or planned controlled purchase. Indeed, only Officer Rains himself 8 stated he instructed the CI to “order narcotics from [Defendant,]” a statement about 9 which Officer Rains was subject to cross-examination. And nothing within Officer 10 Montes’s testimony suggested any statement attributable to the CI regarding 11 Defendant’s plan for the narcotics in his possession. 12 {9} Defendant argues that Confrontation Clause violations may nonetheless occur 13 when testimony incorporates implied or inferred statements by absent declarants, 14 thus precluding the need for a violation to arise from the utterance of a direct 15 statement by that absent declarant. Defendant further contends that because the 16 “questions and answers [at issue here] conveyed the substance of testimonial 17 statements” by a CI, such testimony violated the Confrontation Clause despite the 18 absence of direct statements by the CI. We are unpersuaded by Defendant’s 19 argument in this regard and consider the authorities Defendant cites in support 20 thereof to be distinct from the instant case. For example, Defendant cites Gray v.
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1 Maryland, 523 U.S. 185, 196 (1998), for the proposition that the Confrontation 2 Clause prohibits the use of implied testimony of absent declarants. There, a redacted 3 version of a codefendant’s confession was introduced into evidence, omitting the 4 defendant’s name and including instead a blank space or the word “deleted” where 5 the name would have been. Id. at 188. While we agree with the United States 6 Supreme Court’s reasoning that the type of inferences at issue in Gray “involve 7 statements that, despite redaction, obviously refer directly to someone, often 8 obviously the defendant,” we cannot overlook the distinct fact that a statement was 9 entered into evidence in the form of the codefendant’s confession. Id. at 196. Here, 10 there was no such comparable statement by the CI that was entered into evidence. 11 {10} Defendant further cites United States v. Meises, 645 F.3d 5 (1st Cir. 2011), 12 and United States v. Jones, 930 F.3d 366 (5th Cir. 2019), for the proposition that a 13 Confrontation Clause violation may arise from law enforcement testimony that 14 substantively—even if not explicitly—refers to statements made by an absent 15 declarant. In both cases, law enforcement testimony described tips received from 16 CIs regarding alleged crimes that were committed by the defendants, who were 17 directly identified by the CIs as having committed the alleged crimes. See Meises, 18 645 F.3d at 21; Jones, 930 F.3d at 376. In Meises, the law enforcement agent testified 19 that the CI identified the defendants as having participated in the drug deal. 645 F.3d 20 at 21. In Jones, the law enforcement agent “testified that he knew that [the defendant]
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1 had received a large amount of methamphetamine because of what the CI told him 2 he heard from others.” 930 F.3d at 376. Here, on the other hand, the CI’s information 3 provided to law enforcement did not explicitly incriminate Defendant as having 4 actually committed the crime at issue—that is, distributing narcotics, but rather 5 explained the context for law enforcement’s investigation. 6 {11} As further stated in Jones, “[t]estifying officers may refer to out-of-court 7 statements to provide context for their investigation or explain ‘background’ facts, 8 so long as the out-of-court statements are not offered for the truth of the matter 9 asserted therein, but instead for another purpose: to explain the officer’s actions.” 10 Id. at 377 (internal quotation marks and citation omitted); see also id. (emphasizing 11 that “when such evidence comes into play, the prosecution must be circumspect in 12 its use, and the trial court must be vigilant in preventing its abuse” and noting that 13 “[s]tatements exceeding the limited need to explain an officer’s actions can violate 14 the Sixth Amendment—where a nontestifying witness specifically links a defendant 15 to the crime” (alteration, internal quotation marks, and citations omitted)). We 16 conclude the challenged portions of the officers’ testimony in the instant case fit into 17 this type of permissible reliance on out-of-court statements by CIs, given the 18 nonspecific nature of the testimony at issue, which focuses generally on the function 19 of controlled buys and the manner in which law enforcement relies on CIs. 20 Therefore, even though Jones and Meises establish that implied statements may in
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1 certain circumstances result in Confrontation Clause violations, we conclude that the 2 implied statements in the instant case are wholly distinct from the implied statements 3 in such cases and do not constitute Confrontation Clause violations. 2 4 {12} We turn now to Defendant’s argument that the above testimony of Officers 5 Rains and Montes constituted inadmissible hearsay. “Hearsay” is defined as “a 6 statement that . . . the declarant does not make while testifying at the current trial or 7 hearing,” and that “a party offers in evidence to prove the truth of the matter asserted 8 in the statement.” Rule 11-801(C) NMRA. Just as a Confrontation Clause violation 9 requires an out-of-court testimonial statement by an unavailable declarant, see 10 Navarette, 2013-NMSC-003, ¶ 7, so does the hearsay rule, which then requires the 11 out-of-court statement to have been offered to prove the truth of the matter asserted.
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We note that our conclusion in this regard is in part additionally informed by Defendant’s decision not to raise on appeal arguments regarding prosecutorial misconduct or sufficiency of the evidence, which would have (1) afforded us the opportunity to examine the prosecutor’s statements during opening and closing arguments, which are not evidence, see State v. Cordova, 2014-NMCA-081, ¶ 14, 331 P.3d 980 (“[A]rgument of counsel is not evidence.”); and (2) allowed us to examine whether the State had adequately proven the intent element of the charged crime of possession with an intent to distribute, which was ostensibly only supported by the testimony of law enforcement and references to the controlled buys conducted with the CI. See State ex rel. Hum. Servs. Dep’t v. Staples, 1982-NMSC-099, ¶¶ 2-
3, 98 N.M. 540, 650 P.2d 824 (cautioning that an appellate court should not reach issues that the parties have failed to raise in their briefs). On the other hand, we do not intend to endorse the litigation approach taken by the prosecutor here. Having inferred that the informant would play no role in the testimony, the prosecutor used what can be viewed as sleight of hand to use the circumstance of the buy the officers set up to prove intent. We consider the approach to be unduly sharp practice.
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1 Here again, however, the officers’ testimony did not repeat any out-of-court 2 statements by the CI—the would-be declarant. Without repeating an actual statement 3 made by the CI, neither officers’ testimony constitutes hearsay, and we conclude the 4 district court did not err in overruling Defendant’s objections on such basis. Our 5 above conclusions regarding Defendant’s Confrontation Clause and hearsay 6 assertions as well preclude further review of Defendant’s argument regarding 7 prejudicial constitutional error, given that such argument rests also upon his 8 assertion of error related to the admission of the Officers’ testimony regarding the 9 CI. Finding no such error, we decline to consider this argument further. 10 {13} We next briefly address Defendant’s argument that the district court erred in 11 denying his motion to exclude the officers’ testimony as a discovery sanction. “Trial 12 courts possess broad discretionary authority to decide what sanction to impose when 13 a discovery order is violated.” State v. Le Mier, 2017-NMSC-017, ¶ 22, 394 P.3d 14 959. “The propriety of a trial court’s decision to exclude or not to exclude witnesses 15 is reviewed for abuse of discretion.” Id. “An abuse of discretion occurs when the 16 ruling is clearly against the logic and effect of the facts and circumstances of the 17 case. We cannot say the trial court abused its discretion by its ruling unless we can 18 characterize it as clearly untenable or not justified by reason.” Id. (internal quotation 19 marks and citation omitted). “In reviewing the district court’s decision, [the appellate
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1 c]ourt views the evidence—and all inferences to be drawn from the evidence—in 2 the light most favorable to the district court’s decision.” Id. 3 {14} While Defendant contends that the district court abused its discretion by 4 denying his motion to exclude the officers’ testimony regarding the CI, under a 5 theory that testimony related to the CI curtailed Defendant’s ability to present his 6 planned defense, following our own review of the record and briefing herein, we 7 conclude there to be no error in the district court’s denial of such motion. Indeed, we 8 credit the district court’s observation that defense counsel was made aware of Officer 9 Rains’ testimony to the grand jury regarding the CI, and that Defendant therefore 10 had reasonable notice that the State may elect at trial to pursue a theory based upon 11 such information and present evidence in support thereof. We discern no error in the 12 district court’s refusal to exclude testimony as a discovery sanction. 13 {15} Defendant’s final argument—that he was deprived of reasonable notice 14 regarding the State’s theory of the case—is for similar reasons unavailing. 3 As 15 stated, Defendant knew of the CI’s involvement disclosure by the State to him of the 16 grand jury proceedings and, therefore, had notice that the State might well elect to
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Despite asserting that the State deliberately suppressed further evidence regarding the confidential informant, Defendant does not claim prosecutorial misconduct, and we will not make such an argument on his behalf. See Staples, 1982-
NMSC-099, ¶¶ 3, 5 (stating that “courts risk overlooking important facts or legal considerations when they take it upon themselves to raise, argue, and decide legal questions overlooked by the lawyers who tailor the case to fit within their legal theories” (alteration, internal quotation marks, and citation omitted)).
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1 pursue a theory of prosecution that incorporated this aspect of its investigation. 2 Defendant fails to demonstrate that the district court erred in its ruling in this regard. 3 CONCLUSION 4 {16} For the above reasons, we affirm. 5 {17} IT IS SO ORDERED.
6 ______________________________ 7 J. MILES HANISEE, Chief Judge
8 WE CONCUR:
9 ________________________________ 10 MEGAN P. DUFFY, Judge
11 ________________________________ 12 MICHAEL D. BUSTAMANTE, Judge 13 retired, sitting by designation