Accusation by Proclamatio
Recognizing that the best option in an otherwise bad situation is not a waiver
In previous posts throughout the years I have clearly established my belief that my trial attorney was constitutionally ineffective on many levels, and that because of said "ineffective" representation my defense was severely prejudiced, and because of which I was wrongfully convicted. A prejudice and wrongful conviction that I have been living for more than two decades. However, the assessments that formed my belief on this issue were based on my own limited and unreliable memory that couldn't be refreshed by an accurate trial record because, until recently, that was not available to me. My trial attorney was Joseph Riggs and his co-counsel was Natalie Bruce, and though admitting that I was wrong is not easy, I do feel that it's necessary. I was wrong to conclude that Riggs' legal representation was ineffective on the principle issues that essentially snowballed into the reality that I'm currently living. With the record now before me, the truth of the matter is clear: Joseph Riggs made a series of sound and succinct decisions in a legal predicament created by a series bad rulings that he couldn't control; and he chose the best option from a panoply of otherwise bad options, and, in doing so, created possibilities and hope for future appeals. In fact, it is because of his choices that I am now able to build the appeal that I am building, which is why it's necessary for me to say, Mr. Riggs, on the off chance that you come across this post, peccavi and mea culpa.
Last time, I addressed the issue of whether or not a trial court's use of the Rule of Completeness to justify the introduction of the entirety of a non-testifying, alleged accomplice's testimonial statements was an abuse of discretion that disregarded any and all notions of fairness, due process, or constitutionality. Specifically, the question that was beginning to emerge, and, is now apparent, is whether a rule of evidence can legitimately trump the constitutional demands of the Sixth Amendment's Confrontation Clause. But, as I began searching for this answer something else emerged. I noticed that trial counsel repeatedly argued that the court's intervention against the defense's need to rebut the accusation that the court had already admitted under two exceptions to the hearsay rule (excited utterance; and a present sense impression: Rules 11-803 (2) and 11-804 (B)(3) NMRA) was preventing him from presenting a defense. And I began to wonder whether that in itself was another key piece to the puzzle.
As I delved further into the trial record I discovered an interesting courtroom colloquial. It's important to keep in mind that the context and backdrop of this discussion is that the prosecution had decided to present its case-in-chief without its "star witness," instead opting to rely on direct evidence brought in through Eloy's proxy—his wife—an out-of-court where he accused me of having set him up for the murder. Hearsay that the State would later introduce under two aforementioned exceptions to the hearsay. Obviously, the trial court either ignored the then-recent decision in Crawford v. Washington, 541 U.S. 36 (2004), or determined that since the Court had left for another day any definitive definition of "testimonial" that it need not apply Crawford to the competency and reliability of evidence introduced by the prosecution as an accusation from a non-testifying codefendant, even though previous SCOTUS and NMSC decisions had already addressed the inherent unreliability of accusations made by non-testifying codefendants (see generally, Lilly v. Virginia, 527 U.S. 116 (1999) and State v. Forbes, 138 N.M. 264 (2005)).
In response to the State's prosecutorial strategy the defense, in its need to rebut an accusation shielded from cross-examination by the Fifth Amendment, presented a Motion in Limine that would permit the defense to introduce through its cross-examination of Timothy Hix, the case's lead detective, certain portions of Montano's statements that were not-for-the-truth-of-the-matter-asserted (i.e., non-hearsay) or, if they were hearsay, statements that fell under the exception of statements against penal interest (11-804 (B)(3) NMRA).
At a pretrial hearing on January 24, 2006 the defense's Motion in Limine was discussed on the record, where the defense explained the motion's importance and its intention to introduce portions from the three aforementioned testimonial statements of Eloy Montano (8/19/2004; 8/23/2004; and, 8/27/2004):
JUDGE KNOWLES: Are you talking about in their entirety?
RIGGS: I'm offering, for the purpose of this motion, them in their entirety. I do not anticipate offering the transcripts in their entirety at trial. I will be talking with the detective about specific portions of those and I'll get to that in a minute.
JUDGE KNOWLES: I've got to preface a couple of questions. On your motion in limine that you filed on the 12th, it says because the statements will not be offered for the truth of the matter asserted, they are not hearsay.
RIGGS: Correct.
JUDGE KNOWLES: So what you're telling me is none of these will be offered for the truth of any of it?
RIGGS: A few of them maybe. There are many statements and - -
JUDGE KNOWLES: Okay. From the thickness, I'm drawing that inference, but the reason I'm asking the question is there's - - different tests apply, so the ones that are not offered for the truth of the matter asserted, the touchstone for me is they have to be separately relevant, and we'll go through the whole 403, et cetera, so that's one issue.
Now the ones that - - if there are any that would be offered for the truth of the matter asserted, the other question I've got on that is[,] am I strictly looking at the rules of evidence? Am I looking at any of the confrontation clause tests, Crawford, Ohio v. Roberts? I realize that this is something that is offered against the State. Confrontation may not apply, but I want to make sure I have an idea of what test it was you felt for me to apply. What am I looking for?
RIGGS: Let me give the Court some preface to this.
JUDGE KNOWLES: Talk about the law for a minute and then you can give me all the preface you want.
RIGGS: Certainly, the rules of evidence say that statements that are not offered for the truth of the matter asserted are not hearsay.
JUDGE KNOWLES: Are we talking Crawford or Ohio v. Roberts?
RIGGS: Not talking Crawford or Ohio. Crawford does not apply to the State, and so the State does not have that objection. The State could - -
JUDGE KNOWLES: I suspect you're correct, but like I say, I want to make sure, ground rules, I have an idea of what your position is on it. What else would you like to say, in terms of the Rule that we're looking at?
RIGGS: The Court is correct in analyzing this. We're presenting some contradictory positions: on the one hand, we are saying that certain statements are not being offered for the truth of the matter asserted, therefore, they are not hearsay, therefore, they are admissible. There are some, a few other statements that may be truthful, and we are asserting that those are admissible because they are declarations against interest under the Rule.
The reason I am presenting the Grand Jury transcript and the indictment on Eloy Montano is to show that they indicted him based upon his statements and, therefore, they are statements against interest because the State used them against him to get him indicted and, therefore, they are like that - -
JUDGE KNOWLES: Do I have any - - I mean, again, I don't really know the answer to the question because I know Ohio and I know Crawford are talking about the confrontation clause. Is there any gate keeping function under 11-804 (B)(3) statement against interest, that relates to reliability at all? Even if it's, you know, patently self-serving, because that's what you look at in Ohio v. Roberts, and Crawford did something interesting to all of that analysis.
The defense cited two cases to support its position—State v. Torres, 126 N.M. 477 (1998); State v. Toney, 131 N.M. 558 (2002)—and asserted that because "Eloy Montano, in each of his three statements from August of 2004, shifted blame from himself to Mario Chavez" the statements were relevant. Counsel went on to explain that "[t]he gist of [Eloy's] statements were that, 'I didn't kill Garland Taylor, it was Mario Chavez.' And [Eloy] explained in some detail what his version was. He acknowledged having been present at one point in time during the morning of August 16th at the residence. He made claim that we was taken there by Mario Chavez, [and] shown a dead body."
The prosecution, for its part, explained its concern that Riggs was essentially making his own findings of fact as to whether something was or wasn't a lie or a truth. To which, the court admitted that, "anything he wants pretty much comes in under one theory or another, presumably." But then, clarified that, "if there's something else Mr. Montano said that you think comes in under the Rule of Completeness is [sic] probably going to come in."
Ultimately, the court granted the defense's Motion in Limine, despite the prosecution's concerns about fairness, because the Rules of Evidence on the matter were clear, but directed the following to the parties: "[11-] 801 is offered for the truth of the matter asserted. You're saying it's offered to show that it's, in fact, a lie, but it was said, and the fact it was said and lied about is relevant to his defense. If I were to keep it out, how would I keep it out without you having to do the trial more than once?" And, as a point of fact, the judge asked the State, how the evidence that the defense was seeking to introduce was legitimately able to be excluded. But, all the prosecution could say was, "there's something wrong or unfair, it seems to me, to being able to bring things up that are arguably hearsay to show that - - just to show that they're lies..."
The court, for its part, stated: "I think there's two ways we can go on this. One is, you know, at the end of it all, virtually none of Plaintiff Montano's statements come in." More explicitly, however, the court stipulated, "If I let it in, I'll be pretty wide open to the rule of completeness. If [the defense] elicits something on cross-examination, [the State] get[s] to go into it in redirect and say, Didn't you also say X? And didn't this tend to prove this? And it's going to be pretty wide open."
As the trial commenced the prosecution showed its hand on the importance of its "star witness" in absentia Eloy Montano. Moments before the jury members were brought into the courtroom for opening arguments the State addressed the Court, asking for permission to introduce statements by Dawn Pollaro, Eloy's spouse and proxy for testimony, about statements made to her and overhead by her on the day of the murder:
THE STATE: I wanted to alert Mr. Riggs before we do openings that the State intends to introduce a limited statement under excited utterance that Eloy Montano told his wife the morning of the murder.
THE JUDGE: You want to do this during opening?
THE STATE: Yes.
THE JUDGE: Mr. Riggs, do you know what he's referring to? I don't.
RIGGS: I'm intimately aware of all of Mr. Montano's statements. I would object, we did interview Dawn Pollaro. I was told by the State they were not calling her.
THE JUDGE: This is what we are going to do - -
RIGGS: I would object that they talk about it in their opening.
THE JUDGE: Don't talk about it in your opening. I'm happy to entertain the possibility of its admissibility, but a couple of things can happen; if you talk about it in your opening, [and] I don't later admit it, then you look bad. And I really just like to be a little more aware of what's going on, [and] make a determination whether I think it is [sic] excited utterance, to whom it was made, the circumstances, et cetera, and I may have to go through a confrontation clause analysis that I can't do in the next 30 seconds and do it justice, so leave that out of your opening.
The defense, based on the granting of its Motion and alerted to the prosecution's intent to use Dawn Pollaro as Eloy's proxy for testimonial purposes, presented its defense to the jury in its opening arguments with assurances that Eloy Montano's lies would be revealed. In fact, counsel described the case as "a tale of two people. One of those is Mario Chavez, the other is Eloy Montano." And then immediately went into the criticality of Montano's testimonial statements:
Eloy Montano was also arrested on August 19th, and that began a series of statements that Eloy gave to various detectives at the Bernalillo County Sheriff's Department. These statements are critical, and we will spend a great deal of time looking at what Eloy told the police. He made a statement on August 19th that was tape recorded, and you will see portions of it. He made statements on August 27th. Eloy's statements became part of the focus of the Bernalillo County Sheriff's Department investigation. Of course, Eloy Montano said, "I didn't have anything to do with it, it was Mario."
The investigation was directed in part by some of the things that Eloy said. He would say things, and the detective would follow up on it, and then drop it. And, of course, most of the things that he said, if not all, was, "I didn't do it. I didn't have anything to do with it. Mario did it."
Moreover, as it related to Eloy's lies, and their importance to the defense, counsel was explicit: "we will test his words in the marketplace of truth, because we will go through it and expose his lies." And, as the State moved into its case-in-chief, the importance or its witness in absentia became even more apparent when it called Dawn Pollaro to the witness stand.
As mentioned, Dawn Pollaro was Eloy's proxy and her testimony was introduced through the State's case-in-chief as a way presenting an accusation without having to subject that accusation to cross-examination. On the morning of the murder, Dawn stated that she was at her sister's house when she received an urgent call from her husband, in which he told her to return home immediately.
BRANDENBURG: Okay. Explain as best you can what happened when you walked in the front door of your house.
POLLARO: Well, as soon as I walked in the front door, Eloy was on the far side of the room. He was standing by the bookshelf and he was pacing, pacing, pacing [sic]. His hands were shaking, and he kept saying, "He set me up, he set me up, that fucker set me up." And, you know, I was - - I was asking him, "who? What are you talking about, Mario?" "He set me up."
Eloy's proxy also testified that she had overhead a conversation on the phone where I allegedly said to Eloy, "you're in this with me now, you're in just as much trouble as I am. Your fingerprints are all over my car. You need to go out on the lamb with me." Curiously, words that were almost a verbatim, verbal regurgitation of one of her husband's statements to the police. Of course, on cross-examination she was impeached by three facts: (1)the actual phone records clearly established that there was no incoming phone call from me during the time period she claimed to have overheard a phone conversation between me and her husband; and (2) she had never met or spoken to me, which meant that she couldn't possibly have known who her husband was speaking to; and, (3) her sudden memory of her husband's trembling hands and words was never told to the detectives on the day her husband was arrested and questioned, in fact, it wasn't brought to anyone's attention until a year after the fact, shortly after her husband's indictment.
During the prosecution's case-in-chief, when the defense began to cross-examine the case's lead detective, Timothy Hix, in accordance with the trial court's pretrial ruling on Eloy's testimonial statements, the trial court changed its ruling after only having presented two of Eloy's lies due to concerns about fairness to the State. A decision that led to a contentious discussion outside the presence of the jury about the court's infringement upon the defendant's right to present a defense through rebuttal of the evidence—in particular, the accusation made against the defendant by Eloy in absentia through the proxy of his spouse Dawn Pollaro—that was already before the jury.
The prosecution objected on the grounds of hearsay and when the parties approached the bench the prosecution asked for clarity on the Court's previous ruling on the defense's motion. The defense defended its actions, explaining that it was proceeding as agreed upon under the lie-of-the-matter-asserted and under the hearsay exception of statements against penal interest. And the following colloquial took place:
BRANDENBURG: Your honor, one of our concerns is what he's done is he's taken out of, I don't know how many pages [sic] that all of the three statements total but, you know, hundreds, tens of pages, and he's taken out a line from one page and a line from the next 20 pages, and it takes it all out of context. And the jury doesn't understand what the heck is going on... And by getting bits and pieces the jury is getting a very, very skewed and inaccurate information. I'm asking that it all come in under the rule of completeness. That is the only way to give the jury - -
THE JUDGE: Just keep it down.
BRANDENBURG: - - the flavor and the context.
THE JUDGE: It may be, in fact, come to that. I don't want to make suggestions either way, but, like I said, it may in fact come to that with respect to what you're saying...
In other words, the State was again asking for the entirety of Eloy's testimonial statements to be admitted under the Rule of Completeness. Brandenburg complained of statements being cherry picked by the defense, but didn't provide the court with a single example of something being "skewed" or otherwise taken out of context, nor did the court ask for any examples. Thereafter, the cross-examination of Detective Hix ensued, but again the defense's stated objectives were deterred, and what followed was the anticipated discussion, this time, completely outside the presence of the jury.
BRANDENBURG: Well, your honor, this whole process is something I was very concerned about, and what we wanted was a list of statements that we thought that Mr. Riggs saw were relevant. Then we would be able to look at them. And we didn't need them years or days in advance, but maybe last night so we could have looked at them to see if they were taken out of context and what other things were relevant and the jury had a right to hear.
Now we're put in a position of not knowing what he's referring to until he's referring to it. We need time to go back to see if he's talking about a detective, about what a detective is telling Eloy, we believe you were telling the truth, or like the detective lying to Eloy. Then we need to go back through everything to see the other items or other times that that statement contradicts with what Mr. Riggs is saying is true, and we're objecting on hearsay.
At the same time, we have to be conscientious of what the jury is thinking. And we certainly don't want the jury to think that we're trying to obstruct information or justice in any way whatsoever. We think it would be better if the whole statement came in. And I think it would probably be a lot quicker and that way they get the context.
We're dealing with a number of pages, and I was going to count them up, but I haven't had time. There's over a hundred pages. And so out of that hundred pages Mr. Riggs is quoting a line. We don't know about it until he says it, and we need time to respond. And see if it's in context. The court said under rule 106, the rule of completeness, that we need to respond immediately.
THE JUDGE: Well, as I indicated, that I think is the preferred method under the rule, and you're entitled to it. But I'm not saying that you can't do it later on either. You just need to orient the jury. There was testimony about X from this page. Now let's look at it, you know, line 12 on that same page. As I say, I'm not going to rule out that possibility. I understand the difficulty and your laboring of it. That, I suspect, will not be unreasonable to talk about on redirect.
BRANDENBURG: Another issue that we have is how far is the door open. When Mr. Riggs talks about Eloy lying, does that open the door so we can talk about all the instances where he's telling the truth?
THE JUDGE: Maybe, I mean - -
BRANDENBURG: And how does that impact Crawford? So these are issues. Our argument would be taking things out of context and picking little pieces and giving the jury the wrong impression, it's our obligation to correct that.
THE JUDGE: I mean, let's get concrete. I mean, it helps me to do that. Specifically, what are you asking me to do? What are you asking me to order? What relief are you requesting?
BRANDENBURG: I'm requesting that we be given notice of what statements Mr. Riggs intends to use. And I raised this several days ago because I anticipated getting into the situation so that we can evaluate the context.
THE JUDGE: I understand your point, but it's as we discussed yesterday, you know, [ ] you're not obligated to commit to a particular witness in a particular order. I'm not going to tell the defense they have to give you a specific order how they're going to ask questions. But I understand the point you're making...
BRANDENBURG: I guess, as an alternative, oh, judge, I'm trying to figure out a way that the court can continue to move this trial efficiently and justice can be done for both sides.
THE JUDGE: We all are. And I'm not thinking you aren't at all.
As I said, I need to know your wish list before I can say, OK, I'm allowing it or not allowing it. You mentioned notice. We talked about the option available. I'll get with Mr. Riggs on that. I'm not - - you've indicated to me your preference is to have the entire statement in.
BRANDENBURG: And, I guess - -
THE JUDGE: Go ahead.
BRANDENBURG: What I would like to do, it's going to be impossible for us to respond in an appropriate way, not knowing with the next sentence that's going to come out. I guess I'm asking the court for time to look at the other things that may apply that that would contradict that one statement. And I don't know if we want time after every question. I mean, that seems a little ridiculous.
THE JUDGE: As, I say, if the solution under 106 is to let you do it on redirect, I mean, you're entitled to do it another way if you want. We've all had, we've all had situations where someone says you've got to read the rest of the sentence under 106, and I look at it and say, OK fine. I don't recall either way as to whether or not it's mandatory. But I think you're entitled to completeness, and so whether it happens at that instant or, you know, you've got your list of things, between you and Mr. Heisey, you can find the other stuff that you think sheds light on it during redirect. What are you asking me about?
BRANDENBURG: While I already mentioned this, your honor, and I'll bring this up again, clearly, if Mr. Riggs mentioned several lies that Eloy Montano told, what opens the door for us to go back in and go through the statement and discuss all the truth that Mr. Montano made.
THE JUDGE: That may be. All I'm going to suggest on that and before we get there and have argument is complete cross-examination and make your pitch. I'll hear from Mr. Riggs on it and make a decision. I'm not saying yes, I'm not saying no at this point. But I'm allowing for the possibility. I've noticed many things regarding the possibility, so I don't know yet.
BRANDENBURG: And, your honor, I would ask for time that we can evaluate that after Mr. Riggs finishes his cross-examination. And because we have all the information, the page numbers at our finger tips at that point in time, we would do our best to do that.
THE JUDGE: You do your best. And he's only gone into a couple of areas, like two or three, I think at this point. If it turns into, you know, 40 or 50, it may change your dynamics. Let's let him complete the cross. If you need time, let me know, and we can discuss it...
BRANDENBURG: Am I correct in understanding that when Mr. Riggs asks a statement that involves hearsay that he gives a basis as to why that would be an exception to the hearsay rule? Or do I stand up and object?THE JUDGE: Well, the short answer right now is maybe. I want to hear from Mr. Riggs, and then I'll give you guys direction on it. And I'll give you another chance to speak at the end, if you wish, Mr. Riggs, we talked about the hearsay issue.
Once again the defense attempted to recommence its cross-examination of Detective Hix regarding Eloy's lies, and how those lies impacted the investigative decisions that followed, but was once again stopped by the court. The judge was concerned that some of the lines of questioning being pursued were subjective rather than "that's a yes/no, black/white type of thing." The court also raised the issue and made clear its position on the issue of the prosecution's repeated request to have the entirety of Eloy's testimonial statements admitted under the Rule of Completeness. Specifically, the Court said, "If both sides agreed to that, who am I to argue about it?"
The defense argued that the Court was adding a requirement to Rule 11-801(C) NMRA that was not required by law. As counsel explained, the Rule "does not require that I prove that it's a lie. It requires me to offer it for something other than the truth. The court seems to be saying 'I'm not going to let you operate and use it unless you can show me such evidence that you're going to be able to convince me that it's a lie.'" Ample examples were provided for the court, in that, Eloy had contradicted himself and counsel intended to bring those contradictions to the surface, not for the truth-of-the-matter-asserted, but, to the contrary, as a means of demonstrating how detectives responded to the lies through their investigative decisions.
The court's focus, however, remained on the impossibility of classifying a person's state of mind as that of either a truth or a lie. Moreover, the Court challenged the relevance of the defense's intentions in offering something for the lie-of-the-matter-asserted, "How is that relevant other than to show that he is a liar?" Even though, during the pretrial hearing on the same issue it was the trial court that defended the relevancy against the prosecution's objection: "the fact it was said and lied about is relevant to his defense. If I were to keep it out, how would I keep it out without you having to do the trial more than once?"
The defense explained, "[t]hat's the sole purpose, to show that Eloy was a liar. He's a liar about his description about what happened and what he did. And since the state has control over Mr. Montano, being that they can give him immunity, then in order to present this defense [that] it wasn't Mario, it was Eloy, we have to produce it through the testimonial statements that he made that were a lie." But, the court wasn't convinced that the State had control over Montano's testimony, even when it was pointed out to the court that immunity had already been given in another instance. The court insisted that since Eloy's accusations had not come into play, his lies were not relevant for anything other than proving him a liar, which in itself was not relevant because Eloy had not made an accusation that needed to be rebutted.
Counsel explained that the accusation the court was looking for to justify relevance to Eloy's lies was evidence that was already before the jury, "[i]t is already in through Dawn Pollaro." And went on to explain that "[t]he court let that in forcing us to be in the position of having to review those assertions by Miss Pollaro and Mr. Montano. You let one statement in as an excited utterance. You let one statement in - - I forget the grounds - - for Miss Pollaro asserting that it was Mario Chavez, even though she had never talked to Mario Chavez, so the court let those in, and we're forced into the position of saying it wasn't Mario Chavez." Counsel then quoted the lead detective: "I pursued this investigation based upon the information I had at hand." And then proceeded to point out how crucial the pursued line of cross-examination was to the defense given the court's admission of an accusation that couldn't be cross-examined: "We are trying to show that [Det. Hix] had additional evidence at hand which demonstrated or should have demonstrated that Eloy was equally responsible as an accomplice or solely responsible not as an accomplice, and he chose to ride the horse of evil and accuse Mario Chavez. So the investigative decisions by [D]etective Hix are critical and vital. The only way we can challenge his investigative decisions is by showing the evidence to the jury of what Montano told him, and it wasn't the truth."
The court offered the State an opportunity to respond. In doing so, the prosecution complained that the defense "think[s] it's so important to get his lies in, but they don't want to rely on all the true things [Eloy] said that were born out and supported by a significant amount of evidence." The court then reasoned that if the defense was determined to pursue its defense in rebutting the accusation presented by the prosecution in procuratio, the court would "let the state go through every conceivable truth" through the Rule of Completeness. "So, basically, if you're going to do that, the whole damn statement is going to come in."
Thereafter, the Court seemingly adopted the role of finder-of-fact with its assessment that it failed to see "a logical nexus between...the lie and the relevant thing you want to prove," in that, the fact that Eloy repeatedly lied to the detectives didn't necessarily establish him as a killer, according to the court. Moreover, the judge established that the consequence of introducing non-hearsay to attack an accusation that could not be cross-examined was that the prosecution would be able to introduce Eloy's testimonial statements without having to produce him as a witness, establish exceptions to the hearsay rule, or comply with Confrontation Clause requirements—all under the Rule of Completeness. And, ultimately, the court ruled that until the defense provided a written offer of proof, factually demonstrating that something was a lie, it could not pursue further cross-examination through the lie-of-the-matter-asserted, unless, the defense wanted the entirety of Montano's testimonial statements admitted.
RIGGS: Is the court saying now I can't offer any lies?
JUDGE KNOWLES: Yes.
RIGGS: Judge, I can't see how the court can rule that under Rule 801C.JUDGE
KNOWLES: I just did.
Despite the court's final ruling on the issue, the defense continued to question the court on the limitations of its ruling. But the court was unwilling to change, stating, "I'll give you the bottom line, Mr. Riggs. Even if I go through it and allow anymore, at what point does the state not get everything they think is the truth? And if you want to do that, then we'll just let the whole damn statement in. And I'm OK with that too [sic]." Riggs again insisted that he had "to rebut the evidence," but the court would not change course: "Mr. Riggs, you've heard my ruling. And, as I said, I cannot conceivably let you make all these points without letting the State rebut them with anything they think is the truth... However, if you guys both want to agree to admit the entire statement - - it may come in anyway with that theory."
Counsel tried to reason with the court, "The court is trying to balance and say what's good for the goose is good for the gander. Crawford smacks that one up side the head. Crawford is [co]nstitution - - [co]nstitutional relating to the defendant's right to confront." And then clearly added that the "court is requiring the defendant to waive its objections under Crawford in order to pursue the cross-examination that it wants."
The discussion then went to the court's belief that the state had the right to "completeness" of truth and should get to present Eloy's testimonial hearsay accounts and accusations in their entirety:
RIGGS: Had the Court not closed me off earlier, and I know we were getting a bit testy, I would have said and I'm going to say it now, I'm not going to waive Crawford.
JUDGE KNOWLES: No. I won't ask you to.
RIGGS: I'm not going to waive my objections under Crawford. However, given the choice of not doing the cross-examination that I think is relevant in this case or letting the state have all the statements in, I will let all the statements in, I will let all the statements in [sic]. Now, this means that they can come back and pick and choose the truths. And I recognize that that's where that goes. However, I mean, I will go through this process because I think it's important to defend the case properly, stating on the record that I'm not waiving my Crawford objection but proceeding because at this point the Court has fairly effectively gutted the cross-examination and our ability to put on a defense since we can't call Eloy Montano.
As I read the above dialogue I immediately began to appreciate the difficulty of being in the hands of a lose-lose predicament—a place I know all too well—and I soon came to realize that Riggs' impossible predicament wasn't: (a) a predicament that he created, as I originally believed based on my very imperfect memory; but (b) wasn't, legally speaking, a new or novel predicament, at all. In fact, it coincides almost verbatim with similar predicament created by a similar ruling in State v. Zamarripa, 145 N.M. 402 (2008) which will be explored herein.
Previously, I mentioned that my legal representative and counsel frequently argued before the trial court that its rulings were infringing upon his client's right to present a defense. I admit, I didn't understand what he meant, but the fact that he kept saying it made me think it was relevant. As I studied the issue I quickly discovered that a defendant's right to present a defense was firmly established under the Due Process Clause in Chambers v. Mississippi, 410 U.S. 284 (1973), which is the essential right to a fair opportunity to defend against the State's accusations.
At a minimum, according Mr. Justice Black (quoted by Justice POWELL), that includes, "a person's right to a reasonable notice of a charge against him, and an opportunity to be heard in his defense—a right to his day in court—are basic in our system of jurisprudence, and those rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel." Again, Justice O'CONNOR, delivering the opinion of an unanimous Court in Crane v. Kentucky, 476 U.S. 683 (1986), wrote that, "whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a 'meaningful opportunity to present a complete defense.'" A legal sentiment that I found cited by the New Mexico Court of Appeals in State v. Campbell, 141 N.M. 543 (2007), in that, "where evidence is offered in support of the defense's theory of the case, we recognize a presumption against exclusion of otherwise admissible evidence. No other approach adequately protects the right to present a defense."
All of which establishes that when the trial court admitted Eloy's accusation through the proxy of his wife as substantive evidence of guilt, all the while aware of the fact that the accuser was shielded by the Fifth Amendment from cross-examination, and then subsequently determined that the defense's attempt to attack the accuser's credibility was not relevant, that was, in fact, the very epitome of prejudice. Because had cross-examination in compliance with the constitutional demands of the Confrontation Clause been afforded, obviously the sole focus of the defense would have been to impeach the accuser on every single one of his lies made to the investigating authorities. Would the trial court have intervened with cross-examination under the pretext that it was unfair for the prosecution to have its "star witness" impeached with the truth?
At trial, when it became clear to the defense that fairness or constitutionality weren't going to be part of the court's rulings, co-counsel Natalie Bruce then asked for a clearer understanding of the court's reasoning as to the court's blocking of the defense's defense:
NB: The Court is ruling not that they're hearsay and inadmissible, but under 801 or 802[,] and I believe it's 802, is that they're cumulative, and that is why they are inadmissible?
JUDGE KNOWLES: What I was interested in was if you're not offering it for the truth, what is it relevant to[?] Mr. Riggs said it's that Mr. Montano is a liar and, therefore, anything he said alleging Mr. Chavez did anything is also a lie. Therefore, Mr. Montano is the shooter, and that's my understanding of the theory. That whole chain of logic starts with Mr. Montano not being a truthful person.
One, that point has already been made. Two, the chain of logic gets so attenuated [sic] I'm looking for a pretty close nexus to something relevant in the case. And, you know, it's like - - I think it's somewhat attenuated. And, three - - there are two subparts to three. One is under [11-]403 since it's already been established through testimony that Mr. Montano was not considered to be truthful in any significant respects by law enforcement, the point has already been made. So that probative aspect is substantially outweighed by the danger of confusion of the issues and [a] waste of time.
The other subpart to that is the extent to which you all might not want the door opened to the entire statement.
NB: I understand that part.
JUDGE KNOWLES: And to be very explicit, it's not merely the questions being asked going through it, but it stems back to the very beginning of the cross-examination of, you know, how much was the truth, how much lies.
Let's talk about the lies. You know, does the state at that point get to say, well, we talked about the lies? Now, Mr. Riggs mentioned how much is the truth, which ones were the truth. That may already be water under the bridge. But whether or not the door opened issue is somehow blocked by any type of Crawford analysis, I suspect not. Crawford and Ohio do deal with bringing that in in the case in chief.
NB: Under the part and subparts, the part it is a waste of time or cumulative, so if we get in two statements that support that idea, is the Court ruling anything over two meets that?
JUDGE KNOWLES: Yeah - -
NB: So there is no number.
JUDGE KNOWLES: What I'm saying, you've already got in a few, and that's fine. But what got that point across already was was [sic] he untruthful in some respects. What's the percentage? And [Det. Hix] gave us a speculative percentage. It's 10 to 30 percent. It all sounded pretty significant to me. So, one, the point got to be made. And what we're debating is whether or not you get to make it in all the ways you would like to make it even though it's already made. And so that looks like a long and winding road when it looks like he already took a shortcut.
The shortcut was the fact that since Detective Hix had testified that Eloy had been dishonest a speculative percentage of the time, it was unnecessary for the defense to challenge or call into question before the jury Eloy's credibility. Wow! What a great rationalization for an attorney to get the court to admit on the record. At the vary least Ms. Bruce deserves a small round of applause. Because it just so happens that there's another Rule of Evidence that fits this situation like a glove. It's Rule 11-806 NMRA, and it states, "[w]hen a hearsay statement - or a statement described in Rule 11-801 (D)(2}(c), (d), or (e) NMRA - has been admitted in evidence, the declarant's credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness..." Which is a complex way of saying that since the trial court permitted an in-court accusation in procuratio it could not then interfere with the defense's need to rebut that evidence by attacking Eloy's credibility, because had Eloy testified in accordance with the constitutional demands of the Confrontation Clause the defense would have been permitted to impeach him infinitus.
The federal courts, without having the record before them, determined through guessing (reading tea leaves, a crystal ball, or maybe each other's palms) that the defense had waived its right to confrontation because it accepted the trial court's compromise on the issue of Eloy's testimonial statements that the prosecution badgered the trial court into submission for under the Rule of Completeness. The issue of "completeness" was never brought to the federal judiciary's attention, but nevertheless the ruling was that the defense had waived its right to confrontation because it accepted the court's compromise on being able to continue cross-examination if it did so. A ruling that defied logic and legal precedent, bringing us to the relevance of State v. Zamarripa, 145 N.M. 402 (2008).
In Zamarripa, the defendant was likewise accused in absentia by the alleged accomplice's testimonial statements in violation of the Confrontation Clause. The state did produce Zamarripa's accuser on the witness stand, but only did so through a limited immunity agreement that only extended to the extent of the witness verifying the accuracy of his previous testimonial statements to the police related to the shooting and murder. Meaning that the defense was not permitted to question the alleged accomplice on any of the substantive details from the testimonial statements admitted over his earlier Crawford objections. Similarly, the only way for the defense to present its defense to an accusation that couldn't be cross-examined was to agree to the admission of the entirety of the alleged accomplice's testimonial statements. And, the Court ruled, that there was no waiver in having done so because "[t]he constitutional error was made at the point that the State's motion was granted: any subsequent negotiation with respect to cross-examination of [the accomplice] on his verification of the statement did not waive the objection to the underlying, fundamental limitation on Defendant's rights to fully cross-examine [the accomplice] on the substance of the statement."
Similarly, the defense in my case objected vigorously to the initial introduction of Eloy's accusation through the proxy of his wife as an excited utterance, but the trial court overruled those objections. Just like in Zamarripa, the "Crawford argument had been made and rejected by that point." And the defense's subsequent participation in the courtroom discussion on the admission of the accuser's statements "did not constitute a knowing and voluntary waiver of the prior Crawford objection."
Both attorneys in Zamarripa and my case vociferously stipulated that they were "not waiving Crawford" objections by accepting the trial court's compromise. The Court agreed, stating that, "[a]rguing evidence admitted over an attorney's objection in the client's favor is consonant with an attorney's professional responsibility to zealously advocate for the client and the attorney's duty to act diligently under Rule 16-103 NMRA. There is no waiver where a defense attorney, his or her original objection rejected by the court, determines to 'make the best of a bad situation' and argues the improperly admitted evidence in the client's favor." Moreover, the state's and trial court's reliance on the Rule of Completeness was misplaced, according to a ruling fully applicable to my case in State v. Barr, 146 N.M. 301 (2009), because "the State had not shown that the [entire statement] was both relevant and explained or qualified the portions initially referenced by defense counsel, the state's reliance on the rule of completeness is misplaced."
As co-counsel Natalie Bruce explained to the trial court, there were only two lies that had been brought out onto the record before the court changed its ruling on the issue, therefore, the enforcement of Rule 11-106 was not valid because "[t]he doctrine of completeness does not permit the admission of otherwise inadmissible evidence simply because one party has referred to a portion of such evidence..." Furthermore, the state really had no basis of legitimate complaint because they had the ability to put its "star witness" on the stand by simply offering him immunity, but had instead decided to introduce an accusation that couldn't be challenged or cross-examined.
An individual accused of a capital crime should not be impeded from presenting a defense by rulings stating that his defense is a "waste of time" or "cumulative" or otherwise "confusing for the jury," especially not when a life is in the balance. The state presented an accusation from an alleged accomplice, knowing perfectly well that its evidence, if admitted, would paint the accused into an untenable corner of needing to find creative ways of rebutting evidence that couldn't be cross-examined. When that evidence was then legitimately challenged within the legal parameters of the rules of evidence, it complained about "fairness" and insisted that the entirety of its "star witness's" testimonial statements should be admitted because the defense had introduced two non-hearsay statements not-for-the-truth-of-the-matter-asserted out of more than four hours of contradictory testimonial statements. The trial court, for its part, seemingly labored under the misapprehension that the state was somehow entitled to favorable evidence that it had voluntarily excluded from its case-in-chief when it opted not to offer Eloy immunity for his testimony. All of which means that defense counsel was not ineffective for doing his best in an otherwise bad situation. And, it's important to note that, seemingly, fighting a wrongful conviction is all about the law, but the more I study the law the more I come to realize that that's not entirely the case, because the law is just a subterfuge and an otherwise amorphous being that, just like a viper, can turn on us just as quickly as it can help us.
