The Rule of Completeness

When fairness to the State means prejudice to the Defense.

As I diligently work on my current Petition for Habeas Corpus, I take momentary asides to share with readers some of the discoveries that seemingly emerge from a record that, surprisingly, took nearly two decades and a Petition for Writ of Mandamus to acquire. I'm not entirely sure why it seems necessary and relevant to share these discoveries, other than, in the multifaceted context of wrongful convictions, injustice, and a person's unwillingness to accept either, my hope is that this onerous process one day serves as instructive guidance to future lawmakers and jurists who attempt to address the cruel reality of wrongful convictions and mass incarceration in the United States. My recent excursions down the rabbit hole of the record that is my case has thus far revealed five issues: (1) the trial court's abuse of discretion under the Rule of Completeness (11-106 NMRA) was ERROR; (2) the State's reliance on evidence that was not "competent" to establish essential elements of the crimes for which it charged the defendant was ERROR; (3) the trial court allowed for a qualifying felony under New Mexico's felony murder doctrine to simultaneously be considered "predicate" for the essential elements aspect and "subsequent" for the sentencing aspect, which was ERROR; (4) inappropriate comments from the prosecutor during closing arguments on her personal beliefs and opinions related to the defendant's alleged guilt and a statement that defense counsel was lying was prosecutorial misconduct and ERROR; and, (5) the improper conjunctive term "and/or" in Jury Instruction No. 26 between the primary Count 1 of First Degree Murder (deliberate) and the Alternative of Felony Murder violated Due Process because it caused confusion and prevented the jury from finding the essential element that distinguishes first- from second-degree murder and was therefore ERROR.

At the moment it's impossible to know if the entirety of these issues makes it into the final petition. Individually, each of these issues obstructed me from receiving a fair and impartial trial, but collectively they present and speak to the Kafkaesque reality that defendants face when being prosecuted for crimes alleged, where the presumption of innocence is a phrase without force or relevance in today's jurisprudence. Beginning with the first issue, where the court's use of the Rule of Completeness to justify the introduction of the entirety of a non-testifying codefendant's "testimonial" statements to police, demonstrated a flagrant abuse of discretion and disregard for any notion of fairness, due process, or constitutionality.

There is a reason that the Rules of Evidence in a courtroom are virtually always the product of Congress and state legislatures, rather than the ideations of individual judges or courts: fairness and consistency of outcomes across state and federal jurisdictions. Granted, most Rules of Evidence originally came about through "common law" judicial decisions that eventually hardened like clay into steadfast rules that subsequent judges and courts adopted. Yet, even though they are today mostly consistent, the judges in the courtrooms are still left the task of interpreting the very rules that legislatures produce; and, in doing so, can altogether change the scope and meaning of the rules. Which presents a question, how far can a judge and her gable go in "interpreting" a rule of evidence?

For those who are not familiar with the basic facts or eccentricities of my case, it was a murder case from the summer of 2004, where a local realtor was killed by a single gunshot wound to the head while in the process of seemingly showing a property to a prospective buyer. The investigation yielded no prior connection between any of the alleged shooters, and the only sliver of motive that the State could establish was either a hit-man fantasy or a rash, sudden impulse turned fatal—both theories for which came about through a very controversial figure named Eloy Michael Montano.

The detectives assigned to the case came upon Eloy Montano as a person of interest and potential suspect through a tip given to Crime Stoppers from a friend of Dawn Pollaro, Montano's spouse. Shortly thereafter, Montano was taken into custody on August 19, 2004, three days after the murder, where he gave the first of three testimonial statements to police, in which he accused me of having murdered the victim in question. And based on Montano's initial statement the police took me into custody without incident later that same day.

It's important to note that Montano was initially never charged or arrested in the murder, and under complete cooperation provided detectives with two additional testimonial statements on August 23rd and 27th of 2004. Statements, in their collective, that became a focal point at my jury trial in 2006, because the only direct evidence of my alleged guilt presented to the jury were the out-of-court testimonial statements of Montano who, by the time of the trial, as described by defense counsel at a pretrial hearing on January 24, 2006, was "a controversial figure" because, as explained by counsel, "[a]t the time this case was presented to the Grand Jury, Eloy Montano was considered to be the star witness of the State. He is now a controversial figure, who I think the Court knows will not be testifying, having been indicted and invoking his Fifth Amendment privilege..."

In other words, the State recognized that given Montano's repeated dishonesty to police, any accusation presented by him, under oath, at trial, would essentially open the State's case to a gauntlet of cross-examination that could lead to an acquittal at trial. An outcome the State was eager to avoid, which explains why the State chose to prosecute its case without its "star witness," opting instead to rely on direct evidence brought in through Montano's out-of-court statements allegedly made to his spouse on the day of the murder, where he accused me of having set him up. Hearsay that the State introduced in its case-in-chief under two exceptions to the hearsay rule: (1) an excited utterance; and (2) present sense impression.

The State's strategy of introducing an accusation without actually producing its accuser to testify under oath is the very epitome of underhandedness that leads to the vast majority of wrongful convictions. Primarily because the prosecution knows that it carries the only burden of proof in a criminal trial, and likewise knows that by presenting an accusation without it being exposed to the "crucible of cross-examination" violates a defendant's sacrosanct right to confront his accuser at trial. Does a Rule of Evidence admitting a hearsay accusation against a criminal defendant supersede a Sixth Amendment, constitutional right to confront one's accuser? According to the US Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), while "not all hearsay implicates the Sixth Amendment's core concerns," as they relate to a defendant's right to confront his accuser, it clearly stated that "leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant of inquisitorial practices."

Regrettably, the Crawford Court's ruling only applied to statements that were clearly identifiable as "testimonial," and opted to leave for another day any definitive ruling on what the term meant. What is definitively known as "testimonial," according to the Court, are the three statements that Montano gave to detectives throughout the month of August 2004. But, a statement allegedly made to his spouse, hours after the murder took place? This was the very question that I presented to the U.S. Supreme Court last year: can a criminal defendant be convicted on the out-of-court accusation of a non-testifying codefendant determined by the trial court to be an excited utterance? In my brief I cited no less than 19 appellate court decisions from a variety of states and 11 decisions from the various Circuits of the U.S. Court of Appeals, demonstrating the national importance of having the Court weigh in on this issue. But, the Court chose to remain silent.

Of course, now that I actually have the trial record before me, I can see that while the question being asked was both relevant and crucial to my constitutional right to confront my accuser, it was not the most important question. But unfortunately, without the record before me, I was unable to recognize how the entirety of Montano's "testimonial" statements came to be introduced as evidence to my detriment that couldn't be tested through cross-examination. The trial record clearly demonstrates that the Court believed that the Rule of Completeness under the "law of evidence" permitted it to allow the entirety of Montano's testimonial statements—both the hearsay and the non-hearsay—to be introduced as competent evidence that the jury could consider in determining my guilt. And, the relevant question that follows is, precisely what did the trial court believe?

At the aforementioned pretrial hearing where the trial court would rule on several Motions in Limine, then before the court, the counsel for the defense clearly outlined what it was asking of the court. The State, for its part, postured that it was confused, and it was the judge who summarized the defense's intentions: "[The defense] is seeking to bring in anything he wants from Mr. Montano's statement[s] under the theory that it is either not truthful and tends to be inculpatory toward Mr. Montano and, therefore, exculpatory vis-à-vis Mr. Chavez, or that it is truthful, tending to prove the same things and is a statement against interest. And the things that he wants to bring in is to show that they were not truthful, are not being offered for the truth of the matter asserted. Quite [to] the contrary, they're being offered for the lie that's being what was asserted."

The trial court further stated that, "anything he wants pretty much comes in under one theory or another, presumably." But, then, clarifies to the State that, "if there's something else Mr. Montano said that you think comes in under the Rule of Completeness [it] is probably going to come in." And it's relevant to note that this was the Court's first reference to Rule 11-106 NMRA. An offering that the State immediately seized upon, stating that, "we may want the whole thing in," naturally referring to the entirety of Montano's testimonial statements.

The Rule of Completeness falls under the "law of evidence" that the Crawford Court lambasted as leading to "the most flagrant inquisitorial practices." It's a rule established in common law and currently codified under the Rules (or Law) of Evidence as a necessary tool where, "[w]hen a writing or recorded statement or part there of is introduced by a party, an adverse party may require the introduction at that time of any other part..which ought in fairness to be considered contemporaneously with it."¹ As the New Mexico Supreme Court opined, "[t]he primary purpose behind the rule of completeness is to eliminate misleading or deceptive impressions created by creative excerpting."¹ The Court then goes on to cite several federal circuit courts to further qualify that, "[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, or because a few inconsistencies between out-of-court and in-court statements are revealed through cross-examination..." and "[t]he rule of completeness permits nothing more than setting the context and clarifying the answers given on cross-examination; it is not proper to admit all prior consistent statements simply to bolster the credibility of a witness who has been impeached by particulars."¹

The Court in Barr, clearly established that, "Rule 11-106 does not mandate that a whole document automatically becomes competent upon introduction." And, the term "competent" is extremely important in this context because the Rules of Evidence dictate that the State must rely on competent evidence to establish all essential elements of the crimes for which a criminal defendant is charged. Moreover, Barr presents a similar situation where the State's entire argument for wanting a witness's entire statement was, "it's the complete transcription. Counsel is taking portions of that transcription. We, just under the rule of completeness, would like the jury to see the entire transcript." But, as the Court rightly observed based on precedent, "to have the videotaped statement properly admitted, the State was required to specify which portions were relevant and qualified or explained any inconsistencies that it alleged were taken out of context. Failing such a showing, the videotaped statement was admitted in error."

The Court's decision in Barr was not new for New Mexico. In 1985, the Court of Appeals had already established in Case that the Rule of Completeness was "subject to the requirement of relevancy." In that, "[t]he rule applies only to the other parts of the document which are relevant and shed some light upon the parts of the document already admitted." And, contemporaneously decided, the 8th Circuit of the U.S. Court of Appeals, on the same issue, ruled that said Rule does not empower "a court to admit unrelated hearsay in the interest of fairness and completeness when that hearsay does not come within a defined hearsay exception."¹

The counsel for the defense was clear in establishing why Montano's statements were relevant to the cross-examination of the lead detective on the case. Throughout Montano's subsequent statements to the police, "[t]here were contradictions. There was further exploration by the detectives of what Eloy said," and counsel intended to demonstrate that despite the apparent contradictions and the self-serving nature of the statements being given the detectives never veered from believing that I was the killer. It then clarified that by the time of Montano's third testimonial statement "it [was] clear that the only two people who had direct evidence, personal knowledge about the shooting of Garland Taylor was Eloy Montano and Mario Chavez." And, the defense's theory of the case was "that Eloy Montano was the killer, that Eloy Montano killed Garland Taylor without the assistance or knowledge of Mario Chavez, and but for the fact that Eloy Montano has not made an agreement and gotten immunity from the State, he would be here, subject to questioning on cross-examination."

At no point was the defense attempting to introduce the entirety of Montano's statements, and clearly stated as much on the record. What's interesting to note is that at no point did the trial court instruct the prosecution that in order to introduce other portions of the statements there needed to be a demonstration of relevancy. The Court's sole concern seemed to be premised on the vagaries of fairness, as was the State's.

The lead prosecutor and District Attorney interjected her thoughts on the matter, in that, "there's something wrong or unfair, it seems to me, to being able to bring things up that are arguably hearsay to show that that - - just to show they're lies..." That coming from the only party in the courtroom with the ability to produce its witness whenever it so wished to do so through the offer of immunity.

In response, the Court's assessment on the State's concern of "fairness" wasn't to admonish the State for complaining about a problem that it itself had created by strategically introducing an accusation from Montano in such a way that it couldn't be passed through the constitutionally mandated "crucible of cross-examination." Instead, the Court stipulated that, "[a]t the end of it all virtually none of Plaintiff Montano's statements come in, and the other is virtually all of them come in." A qualifying statement made with no indication or instruction made to the State's need to demonstrate relevancy. In fact, the Court went in the opposite direction of fairness with its stipulated guidance: "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."

Wide open? The Court's guidance to the State was that it would be able to introduce clear instances of testimonial hearsay (statements for the truth-of-the-matter asserted) without having to produce its witness and thereby expose his testimony to the constitutional demands of the Confrontation Clause. Moreover, the Court said, "I'm frankly leaning towards just lay it all out. [The defense] gets to make the points he wants to make with the statements, you get to make the point you want to make with the statements, and see how it turns out. I'm not sure how else to do it without having to do the trial more than once, with all candor, that's if he gets convicted, but my job is to make sure that both sides get a fair trial, and this is the best I can figure out now."

I guess it never occurred to the judge that if not for having allowed the State to introduce the direct, and, only, accusation of guilt from a codefendant and witness who it opted not to produce at trial, the State's complaint about "fairness" wouldn't have been an issue. The defense was just responding to the State's strategy, and obviously needed to challenge the veracity of an accusation that could not be cross-examined.

The trial court made it very clear that there would be no tests of relevancy for the State's request to have the entirety of Montano's four-plus-hours of testimonial hearsay admitted as competent evidence that the State would then use to stand on as it "proved" without proving the essential elements of the crimes charged. Likewise, the judge wasn't concerned with which party had opened the door to Montano's statements, or whether a vagarious rule of evidence trumped the constitutional demands of the Confrontation Clause. He was concerned with one thing: fairness to the State; and, preventing a retrial if he were to deny the defense's motion. Altogether demonstrating the judge's misguided belief that his gable was also a magic wand that with the flick of a wrist could mysteriously turn hearsay and testimonial statements into competent evidence for the State's case to stand upon.

As guidance to future lawmakers and jurists who might want prevent some of the more egregious abuses of discretion that take place in courtrooms, allowing a district judge to interpret the Rule of Completeness as "everybody gets what they want," well, you might want to legislatively remind judges that their gables are not infused with magic and they themselves are not wizards or genies on the bench to grant wishes. Their role is to apply and uphold the law, not invent the law to comport with their ideas around what is or isn't fair. Thus far, I'm just at the tip of the iceberg on this one issue, but I'll say this: it's both disappointing and interesting to see just how oblivious judges are to the very laws they are meant to uphold. Of course, there is always the possibility that what I'm now discovering are not errors, but rather, indications of intent where a court blatantly acts as an accomplice to the State's desire to convict someone without having to live up to its burden of proof by producing the evidence it intends to stand its case upon. Either way, this issue, along with many, if not all, of the others will be presented on appeal...soon. And, as always, there is more to come.

FOOTNOTES: 1. Rule 11-106 NMRA; State v. Barr, 210 P.3d 198, 146 N.M. 301 (N.M. 2009); United States v. Awon, 135 F.3d 96, 101 (1st Cir. 1998); United States v. Ramos-Caraballo, 375 F.3d 797, 802 (8th Cir. 2004); United States v. Woolbright, 831 F.2d 1390, 1395 (8th Cir. 1987)

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